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(Enllrgp  of  ICibrral   Arte 

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THE    FOUNDATIONS   OF 

SOVEREIGNTY 


wi> 


OTHER   ESSAYS 


BY 

HAROLD  J.   LASK1 

AUTHOB   Of     "  THE    I'BOBl.EM   OF  HOVEBEIONTT,"     "  AUTHOBITT    IN    THE 

MODERN    UTATE,"    ETC. 


B  N  UNIVERSU 

COLLEGE  .IRALART^ 

LIBF 


NEW  YORK 
HARCOURT,  BRACE  AND   COMPANY 

19S1 


^\ 


COPYRIGHT,    I  g  2  I ,    HV 

BA1COUKT,    I1AC1     and    company,    INC. 


To  Ml   Fkiknd 
ROSCOE     POIND 

DtA*  or  thk  Law  School  in  Hun  \w>  I  nivebhitt 

WITH 

Abiding  Affection 


J* 


BOSTON  UNIVERSITY  LIBRARIES 


PREFACE 


Tin-     SSSayi    printed    in    1 1 1 i -.    volume    arc    part     of    ;m 

Attempt  a1  the  reconstruction  of  political  theory  in  terma 
of  institutions  more  fitted  to  the  needs  pre  confront. 
Broadly  speaking,  they  are  part  of  the  case  for  what  is 
coming  to  be  called  the  pluralistic  state  in  contrast  to 
the  unified  sovereignty  of  the  present  social  organization. 
But  they  are  only  part  of  the  case.  The  industrial  and 
psychological  inadequacy  of  the  existing  regime  is  briefly 
discussed  in  the  second  of  these  paper-.  Since  that  iras 
written,  the  evidence  given  before  the  Royal  Commission 
on  the  Coal  Industry  and  the  Inquiry  into  Dockers1 
Wages  have  shown  that  the  institutional  reconstruction 
will  inevitably  be  more  thorough-going  than  I  there,  writ- 
ing in  1918,  imagined.  What  evidence  we  have  from  the 
European  continent,  particularly  from  Russia  and  Ger- 
many, makes  it  evident  that  the  classic  system  of  repre- 
sentative government  has  reached  its  apogee.  What  we 
need  above  all  is  inventiveness  in  the  social,  legal,  and 
political  matters  that  are  discussed  in  these  essays. 

It  is  a  matter  of  no  small   interest   to  speculate  upon 
the   direction   from   which   that    inventiveness  is   likely   to 

come.  Despite  the  great  service  rendered  by  the  phil- 
osophers   to    political    science,   they   have    studied    rather 

the  form  than  the  substance  of  the  state.  This  has  meant 
.■in  undue  emphasis  upon  purpose  as  distinct  from  the 
fulfillment  of  purpose.     It  has  led  to  an  analysis  of  the 

v 


vi  PREFACE 

"pint   instance,"   rather   than   mi   analysis   of   the  actual 

experiment*  irith  which  history  pretenti  as.  Thai  ii 
why  the  attitude  of  the  philosopher  hai  been  to  similar 
to  that  of  the  1         r.    The  "rights"  studied  by  the  latter 

take   their   Origin   from   a    .set    of   historical    circuinstan< 

which  the  lawyer,  from  his  standpoint  naturally,  is  able 
to  ignore.     They  differ  from  the  study  of  "right."     Hut 

it    is    upon    the   latter    problem    that    our   attention    mutt 

today  be  concent  rated. 

Por  we  have   found   that   a   slate  in   which  sovereignty 

is  unified  is  morally  inadequate  and  administratively 
inefficient.     It   depends   upon   an   intellectualist   riew   of 

the  political  process  which  is  not,  as  Mr.  Graham  Wallas 

has  shown,  borne  out  by  the  facts.     It  assumes  that  the 

government  is  fully  representative  of  the  community  with- 
out taking  account  of  the  way  in  which  the  character- 
istics of  the  economic  system  inevitably  pervert*  the 
gOl  eminent  al  purpose  to  narrow  and  special  ends.  It 
aasumefl  that  the  problems  of  the  modern  state  admit  of 
general  solutions;  the  fact  surely  is  that  the  essential 
problem  ifl  the  different  way  in  which  those  general  solu- 
tions can  be  administered.  Nor  can  the  average  voter 
be  said  to  transcend  his  own  interest  by  merging  himself 
into  a  larger  whole  with  the  result  that  a  "general  will" 
ured.  Here  we  have  been  led  astray  by  the  facile 
brilliance  of  Rousseau.  The  more  carefully  the  political 
process  is  analyzed,  the  more  clearly  does  it  appear  that 
WC  are  simply  confronted  by  a  series  of  special  wills 
none  of  which  can  claim  any  necessary  pre-eminence.  In 
particular,  it  dots  not  sufficiently  investigate  the  moral 
character  <>f  governmental  acts.  The  objectivity,  for 
example,  of  the  interpretations  issued  by  the  British  gOV- 
l  rnment   during   the   railway   crisis   of   1919  can   only   be 


-r" 


PREFACE  v.i 

fairly  judged  by  the  careful  scrutiny  of  individual  citi 
lens.     In  politics]  above  all,  there  ii  no  a  />ri<>ri  rightm 

Nor  is  this  nil.  The  monistic  state-philosophy  too 
Little  investigates  the  relation  of  the  citizen-body  ns  n 
body  capable  of,  but  rarely  exercising,  judgment  upon 
policy.  The  investigations  of  the  Sankey  Commission, 
for  example,  have  ihown  how  vast  ii  the  unrealized  i 
perienoe  which  lie>  waste  in  the  autocratic  management 
of  industry.     That  waste  is  not  less  true  of  government 

departments.      Once,  at   any  point,  work  is  divorced   from 

responsibility  the  result  is  a  balked  disposition  of  which 
the  consequence  is  to  diminish  the  creativenesa  of  the 
worker   concerned.     The  hierarchical   structure  of   the 

present  state  maximizes  this  loss.  Nothing  ifl  more  clear, 
for  example,  than  the  existence  of  a  law  of  diminishing 
administrative  returns.  An  official  cannot  be  charged 
with  business  over  a  territory  beyond  n  certain  lize 
without  administering  less  efficiently  for  each  addition  to 
his  work;  and  no  amount  of  efficiency  at  a  central  office 
will  morally  compensate  for  the  inferior  interest   in  the 

result  obtained  of  those  who  have  had  no  effective  share 
in  making  it.  The  npprecintion  of  this  is  one  of  the 
most  vital  factors  in  Mr.  Justice  Sankey's  scheme  for 
the  nationalization  of  British  mini  I,  And  this  is  true 
not  merely  of  industry  alone.  The  departmental  organ- 
ization of  every  monistic  state  becomes  over-centralized; 
and  this,  as  Lamennais  aptly  said,  results  in  apoplexy  at 
the  centre  and  anaemia  at  the  extremities,  For  the 
inevitable  consequence  of  centralization  is  an  attempt  to 
apply  uniform  and  equal  solutions  to  tilings  neither  uni- 
form nor  equal. 

The   pluralistic    state   is   an   attempt    to    remedy    tin  N 
defects   by   substituting   coordination   for   a   hierarchical 


vni  PREFACE 

structure.     .Mainly  it  must  1m  based  upon  i  study  of  the 

impulses  \\  li  icl  i  a  it  at    work  in   tin-  business  <>f   production 

and   tin-  channels   \sc   ha\c  erected    for   tin'  .satisfaction   of 

those  Impulses.  We  must  .start  from  the  admission  that 
the  silegisnce  of  man  is  diverse  and  that  where  bii  loyal- 
tie*  conflict  it  is  ultimately  both  safer  and  better  for  the 
community  that  this  instructed  conscience  should  be  the 
lource  of  his  decision.  It  would  follow  thai  then-  is  no 
such  thing  as  the  sovereignty  contemplated  by  lai  in  any 
sense  which  admits  of  practical  political  application.  In 
actual  fact  what  we  imct  is  a  variety  of  interests,  func- 
tional and  territorial;  and  the  way  in  which  they  are 

related  BUggestfl  the  necessarily  federal  character  of  all 
government.  The  main  advantage  of  this  federal  .struc- 
ture is  that  it  affords  better  channels  for  the  operation 
of  an  active  consent  upon  the  part  of  citizens  than  any 
other  method.  Nor  must  this  federalism  be  conceived  in 
merely  spatial  terms.  It  applies  not  less,  say  to  the 
government  of  the  mines  than  to  the  government  of 
Ireland  or  of  Massachusetts.  Ultimately  it  suggests  not 
only  a  partition  of  sovereignty  in  terms  of  function  but 
also  a  complete  revision  of  the  accepted  notion  of  prop- 
erty. Ultimately,  also,  it  suggests  a  rough  division 
between  the  two  great  functions  of  production  am]  con- 
sumption in  which  supreme  power  is  divided  between  the 
two.     Where  the  interests  of  each  touch  upon  the  other, 

it  is  char  enough  that  some  mechanism  of  ultimate  ad- 
justment will  be  needed;  but   the  main  thing  is  to  avoid  a 

item   in  which   supreme   power   is   concentrated   at    a 
single  point  in  the  body  public. 

There  is  at  bottom  involved  in  this  view  a  theory  of 

the  nature  of  liberty.  In  Mr.  Graham  Wallas1  admir- 
able phrase,  liberty   II   conceived   as  being  the   "capacity 


PREFAJ  E  ix 

of  continuous  initiative99;  and  if  ia  su        ted  thai  thi^ 
unattainable  in  ■  monistic  state  i  tcepi   foi  i  small  go 
erning  class.     Liberty,  it  i>  argued,  is  derived  from  the 
existence  of  avenues  of  creative  activity  tor  tin-  mass  of 
citizens.     It  is  obvious  thai    the  hierarchical   structure 
of  our  presenl  order  does  not   offer  such  opportuniti 

\.  to  a  small  group  <>t  men.  En  the  result  we  l(j 
\a>t  irelter  of  experience  irhile  ire  balk  the  disposition 
of  many  irhose  faculties  an  capable  of  far  greater  use 
than  that  to  which  they  are  normally  devoted.  Above 
all,  the  control  of  political  power  in  the  modern  state 
by  a  small  group  of  property  owners  musi  mean  at  the 
bottom  that  the  motives  to  effort  upon  which  reliance  is 
based  will  be  ineffective  so  loon  as  the  majority  of  men 
through  the  facade  by  which  they  arc  screens  I. 
Liberty,  in  >hort,  is  incompatible  with  the  present  system 

of  property;  for  its  result  is  a  concentration  of  power 
which  makes  the  political  personality  of  the  average  citi- 
zen ineffective  for  any  serious  purpose. 

ii 

These   essays   are   part    of   a    scaffolding   from    which 
there   is,   I   hope,  eventually    to   emerge   a    general    r 
construction  of  the  state.     But  it  may  be  useful  at  this 
stage  for  me  to  indicate  some  of  the  sources  in  which  I 

have  found  deep  eomfort.  I  believe  profoundly  that  no 
attempt  at  reconstruction  of  our  present  institutions  is 
likely  to  be  successful  save  in  so  far  as  it  is  deeply  rooted 
in  historic  knowledge.     For  that   purpose  we  must   go, 

not   merely  to  men   like  Maitland   and  Gierke,   Figgis   and 

Mr.  Justice  Holmes,  but  to  the  actual  texts  themselv< 

In    things    like    the    Coneiliar    Movement,    the    marvelous 

edifice  of  Edmund  Burke,  the  struggle  for  the  Charter, 


x  PREFACE 

th<   early  history  of  American  federalism;  in  1-    er  men 

like  .lolm  Taylor  of  Caroline  no  l<>^  than  in  tin  greal 
thinkera  1  ik*  Hamilton  Mm— ll  will  tin-  cluei  tu  our  prob- 
lems be  found. 

Nor  doei   the  literature  of  our  own  time  lack  suggest 

iveness.  In  Law,  nun  like  Pound  and  Duguit;  in  eco- 
nomics, the  superb  edifice  of  Mr.  and  Mrs.  Sidney  Webb; 

in  history,   the  work  of  Tawnev  and   Hovell  and  Mr.  and 

Mrs.  Ilaminond;  in  administrative  science,  the  hooks  of 
Mi-.  Graham  Wallas  and  the  analyses  «»f  Lord  Haldane: 

in  politics,  the  brilliant,  if  too  brief,  suggestions  of  .Mr. 
(i.  I).  11.  Cole;  all  of  these,  in  their  sum,  are  the  marks 
of  a  imminent  which  to  the  next  generation  will  appear 
not  less  influential  than  the  work  done  a  century  ago 
by  the  Utilitarians.  Its  results  are  only  less  obvious 
because  it  starts  with  the  recognition  of  the  great  com- 
plexity involved  in  the  facts  of  social  structure.  They 
are  the  more  enduring  for  that  very  reason. 

One   remark   at    this   point  will   not   perhaps  be  out  of 
place.      The  study  of  American  history  and   politics  has 
barely  been  attempted  in  Great  Britain.      Acton's  magi- 
tr.il    glance,  of  course,   swept    them   within   the   range  of 
knowledge:  and  here  .and  there  an  investigator  like  Doyh 
or  Payne  has  done  work  of  high  value.      But  the  relevance 
of    American   political   speculation   to    the   general   social 
questions,  the  richness  of  American  history  as  a  sour 
of  BUggesthreness,  has  been  badly  neglected.     We  in  Kng- 
land.    of    course,    know    the    Federalist ;    but    we    are    ton 
inclined  to  regard   the  Federalist   as  unique  in   American 

Literature,  In  fact,  it  is  but  a  portion  of  a  much  vaster 
effort  wliieh  produced,  between  1787  and  1840,  a  political 

philosophy  a-  rich  and  suggestive  as  any  people  can  offer 
in   a   similar   period   of   time.      Since   1815,   indeed,   there 


PREFACE  xi 

has  been  little  of  the  first  importance;  though  booki  like 
Mr.  Herbert  Croly's  Promise  of  American  Life  and  Mr. 
Walter  Lippmann's  Preface  to  PolUict  show  that  this  ii 
the  accident  of  special  economic  conditions  rather  than 
exhaustion.  The  suggestivenessj  indeed]  hai  simply  bet  d 
transferred,  perhaps  in  Less  ample  measure,  to  the  fields 
of  history  and  law.  No  one  u ho  examines  that  literature 
of  American  sectionalism  which  has  been  produced  through 

the  genius  of  Professor  Turner  can  fail  to  glean  an 
insight  of  high  value  into  the  problems  of  organization. 
No  one  who  studies  the  eonstitut ional  decisions  of  the 
Supreme  Court  of  the  United  States,  (.specially  the  great 
series  associated  with  the  name  of  Mr.  Justice  Holmes, 
but  can  gain  a  new  understanding  of  the  forces  by  which 
social    relationships   are   molded. 

I  have  dedicated  this  book  to  my  former  colleague  Dean 
Pound;  not  merely  in  remembrance  of  my  own  full  yean 
at  Harvard,  but  also  as  the  least  tribute  I  can  offer  to 
a  Law  School  which  is  still,  as  it  was  in  Maitland\s  time, 
the  greatest  educational  experiment  on  the  American 
continent.  That  it  grows  in  creativeness  is,  as  I  have 
had  full  opportunity  to  observe,  in  largest  measure  the 
result  of  his  influence. 

I  owe  to  various  editors  thanks  for  tin-  permission 
generously  accorded  to  reprint  material  which  has  already 
appeared  in  their  pages. 

Harold  J.  Lasix 

London  School  of  Economics  and  Political  Science. 


CONTENTS 

Preface       ....          v 

The  Foundations  of  Sovereignty .  1 

The  Problem  of  Administrative  Areas       .  .30 

The  Responsibility  of  the  State  in  England.      .      .      .  108 

The  Personality  of  Associations 199 

The  Early  History  of  the  Corporation  in  England  .      .  171 

The  Theory  of  Popular  Sovereignty 201) 

The  Pluralistic  State 

The  Basis  of  Vicarious  Liability 250 

The  Political  Ideas  of  James  I £99 


THE   FOUNDATIONS   OF 
SOVEREIGNTY 


Wk  too  rarely  inquire  how  greatly  our  institutions  bear 
upon  their  face  the  marks  of  the  environment  they  have 
inherited.  Yet  it  is  indubitable  that  the  state,  at  Least, 
u  the  offspring  of  a  special  set  of  historic  circumstances, 

Man  is,  of  course,  a  community-building  animal;  but  it 
was  not  until  the  sixteenth  century  that  the  technique 
which  surrounds  the  modern  state  came  into  existence. 
Sovereignty,  in  the  sense  of  an  ultimate  territorial  organ 
which  knows  no  superior,1  was  to  the  middle  ages  an  un- 
thinkable thing.  The  basis  of  medieval  organization  irai 
radically  different.  That  at  which  it  strove  was  unity 
and  the  road  thereto  lay  through  a  system  of  groups 
which  consistently  surpassed  the  limits  of  geography. 
The  territorial  fact,  indeed,  was  then,  as  now,  an  ulti- 
mately inescapable  thing.  No  one  can  read  the  regula- 
tions of  a  medieval  guild  without  the  realization  that  the 
trader,  at  least,  was  passionately  local;  and  even  where 
the  mercantilism  of  pre-Reformation  times  was  limited  by 
the  maxims  of  canonist  ethics  and  the  obvious  sources  of 
economic  supply,  it  was  still  shot  through  with  vaguely 
nationalistic  notions. 

Yet  the  fact  remains  that  the  apparent  simplicity  of 
a    World    Organised    into    a    set    of    sovereign    states    w 

1   Cf«   Zimmern,  Nationaliti/  and  Q{fO$rnment,  {>.   56. 

1 


FOUNDATIONS    OF    SOVEREIGNTY 

Imo.uIIv  unknown.  Sovereignty,  in  the  modern  sense,  ii 
the  progenitor  of  impalpable  harriers  from  which  the 
medieval  thinker  Bought   at   all  costs  freedom*     Our  or- 

inization     is     inherited     from     the    breakdown    of    that 
RetpubUca    Christiana    by    the    though!    of    which    he    P. 

dominated.      The   notion    therein   implied   w  a  - .   at    bottom, 

the  great  legacy  of  imperial  Rome;  and  it  was  not  until 
its  impotence  as  a  practical  hypothesis  was  demonstrated 

that     more    nintli  i  n     ii  it  as    could     make    their    way.      The 

RetpubUca  Christiana  implied  the  worship  of  pervasive 
unity.     Everywhere  plurality  was  taken  as   the  merest 

Vesture   beneath   which   men   must    penetrate   if    they   would 

discover  the  real  secrets  of  the  universe.  It  was  the  main 
effort  of  the  medieval  thinker  to  find  the  essence  of  that 

ret  whereby  the  oneness  of  humanity  in  God  might  be 
made  manifest.     Over  and  above  the  separate  interests 

of  persons  and  of  institutions  there  arose  always  the 
majestic  notion  of  the  inclusive  All  which  somehow  t  ian- 

nds  the  inconvenient  variety  of  a  shifting  universe. 

The  maxhne  mi  am,  so  Dante  thought,2  IS  the  ma.rimr 
ho/mm;  and  it  was  in  shrinking  from  the  infamous  notion 
of    a    dual    universe    that    Boniface    VIII    could    issue    his 

('nam  Saint  am?  One  law  and  one  government  were  the 
necessary   corollary  of  its   single,  dominating  purpose.4 

That   is  why  the  medieval  state  is  a  church;   for  all   men 

were  Christians,  and  before  that  basic  unity  of  outlook  all 
difference  -  were  held  as  insignificant.  It  cannot  he  said 
that  the  medieval  mind  thought  intolerable  the  division 

of  the  community  into  two  separate  spheres,  hut   at   least 

if  shrank  therefrom.  Some  such  picture  Gelatins  I  may 
hav<    painted;8  hut  in  the  later  day-  of  the  Carolingian 

•-■  Di  Monarch*,  Ch.  15.  *  D*>  Monorchia,  (V.  3.  1 

3  C   I.    F.xtrav.    I.  s  X,  !>. 


FOCNDATIONS    OF    SOVEREIGNTY  8 

empire  men  1  i  K « -  Archbishop  Hincmar  and  Jonas  of  Orleans 

could  lay  the  foundationa  of  srider  claim-  which  Gregory 

VII.  and  Innocent  III.  knew  well  how  to  bring  to  mature 

at  tainnicnt. 

Not,  Indeed,  that    the  medieval   thinker  found    reconcili- 
ation of  church  and  state  an  easy  thing.     The  idea  of  a 

separation    of    the   eternal    from    the    temporal    order    was 

never  for  long  absent  from  his  mind;  and  the  great  fact 
of  increasing! v  Beparate  kingdoms  meanl  the  acceptance 
of  separate  systems  of  law.  A  variety  of  legal  systems 
implied  a  variety  of  governments  to  enforce  them.  In 
such  a  background,  the  notion  of  unity  seemed  like  to 

vanish  before  hard  facts.  Vet  it  does  not  disappear. 
for  the  medieval  mind  became  convinced  that  Mich  dis- 
parity could  find  a  reconciliation  in  a  higher  synthesis. 
The  two  great    schools  of  political   thought  were  seeking 

—  at  least  from  the  struggle  between  empire  and  papacy 

—  a  solution  in  terms  of  unity.  The  solution  broke  down 
before  the  growth  of  nationalities  on  the  one  hand,  and 
the  persistent  degeneration  of  Rome  upon  the  other.  Yet 
right  down  to  the  Conciliar  Movement,  at  least,  all 
Churchmen  with  high  notions  of  the  papal  prerogative 
insisted  that  Rome  is  rightfully  the  mistress  of  the  Chris- 
tian world.  This  it  is  which  permits  the  affirmation  that 
the  middle  ages  had  a  clear  conception  of  sovereignty. 
even  if  its  territorial  asped  failed  of  development.  For 
the  pltiiitiulo  pote$tati$  implied  a  full  sovereignty  over 

the  affairs  of  men.  The  rule  of  Christ  in  heaven  had 
to  find  its  pale  but  real  reflection  in  an  earthly  kingdom; 
and  if  Christ  was  King  above,  so,  it  was  urged,  must   the 

Pope,  as  his  vicar,  rule  below.     The  Emperor  might  bear 

the  impt'riiuii,  but  he  derived  it  mediately  from  the  good 
offices   of    Rome.      The   two   sword>    were   ultimately   in   a 


I-  FOl  WDATIONS    OF    SO\  BREIGNTY 

•ingle  hand.  Emperial  power  was  nothing  save  the  ex- 
pression <>f  papal  convenience.  Jut  divinum,  tliai  ii  to 
i\,  postulated  the  universal  sovereignty  of  the  Church. 
The  dream  i*>  itrange  to  ns«  Y.  t  rare  indeed  ii  the 
medieval  thinker  who  had  the  courage  to  urge  that,  ai 
matter  of  historic  record,  Leo  II  had  implicitly  admitted 
the  superior  right  of  Charles  theGreal  to  govern.  Rarer 
Btill  is  the-  publicisl  prho  dares  to  challenge  the  dream  at 
its  source.  There  arc  threats  and  acts  with  unexplored 
theorj    Lurking  at    their   root;  as   with   the   defiance  of 

Norman   William   to    the   papal   claims   of  su/t raint  \ .'    or 

that  practical  hate  of  .solid  financial  loss  which  inspired 
the  statutes  of  Provisors  and  Praemunire.1     Gerard  of 

York,  indeed/  has  a  char  outline  of  a  full  theory  hinging 
upon  the  divine  right  of  kings.  Ockham  insists  upon  a 
world  in  which  the  Church  is  but  a  portion  of  the  em- 
pire;'   but    it    is    still    a    unity    of    which    he    dreams. 

Marsiglio  is  Brastian  enough;  but  he  is  pre-eminent  be- 
cause lonely  in  his  Erastianism.  The  normal  theory  of 
those  who  challenged  the  Church  in  the  name  of  the  em- 
pire was  the  ancient  notion  of  two  separate  powers  each 
governing  its  due  portion  of  the  single  Christian  common- 
wealth. The  powers,  by  most  at  least,  were  admittedly 
coordinate,  and  it  was  by  their  peaceful  cooperation  that 
unity  could  be  achieved.      That  is  the  essence,  for  example, 

of  the  settlement  at  Worms.1"     It  is  even  the  essence  of 

the  solution  Pierre  Dubois  had  in  mind,  at  an  epoch  when 
the  fading  power  of  Home  —  though  not,  as  Augustinus 

«  Stul.l.s,  Ocm&tU.  History,  I,  305. 
i  U  i     ill.  el..  I;  B.  [II,  St.  l,  Ch.  l. 
-   M.m.  <;.  r.  Hist.  i.ih,m  dt  Lit,-,  Ml,  SSa 
»  Otto  Qnasst^  I,  Ch.  B  6,  90. 

\ikI  ..t  tii,   m -ttifiiieiit  after  the  Beeket  controversy,    stubbs, 

Cunstit.   Hi.,!.,   II. 


FOUNDATIONS    OF    SOVEREIGNTY 
Triumphus  ihowi  ns»11  an  epoch  of  fading  claimi       made 

DOSsibl*    more   nationalistic  dream..  Let    pop    and   en 

peror  take  their  due  share  of  an   unified  i  in  jxriu  m  which, 

for  administrative   purposes]  iras   neatly  and   naturally 

divided  between  spiritual  and  secular  in  degree  deter- 
mined by  the  writer's  party* 

The  motive,  at  Least,  is  unmistakable.     A  world  that 

recognized    variety    and    different  emed    from    its    very  y 

basifl  to  give  promise  only  of  anarchism.  An  ultimate 
unity  of  allegiance  was  a  guarantee  of  order.  That  is 
why   even   so   eminently   Whig   8    thinker   as    Aquinas   not 

only  urges  the  supremacy  of  Rome  hut  also  warns  against 

the  popular  rebellion  for  which  he  provides  a  sanction.11 
That  is  why,  also,  the  movement  of  the  middle  ajres  i^ 
Consistently  away  from  the  diversified  allegiance  which 
is  inherent  in  the  theory  of  feudal  organization.  A  world 
of  purclv  private  rights  —  and  this,  at  bottom,  is  the 
feudal  world  —  gives  no  sanction  for  the  safeguard  of 
general   interests.     The  whole  importance,  for  example, 

of  the  Model  Parliament  of  121)")  was  the  mechanism  if 
provided  for  BUpeneding  the  separate  immunities  of  func- 
tional and  territorial  organizations.  The  modern  state 
could  not  cinci-fre  until  the  universal  interest  of  the  com- 
munity  had  obtained,  at  least  in  theory,  an  organ  for  the 
protection  of  its  demands  against  the  multifarious  liber- 
ties and  franchises  which  competed  with  its  will. 

The  unity  summarized   in   papal   control   went,  for  the 

adherents  of  Rome,  at  Least,  some  distance  to  the  accom- 
plishment of  this  need.      Medieval  politics  are  a  branch  of 

theology;  and  so  long  as  the  ultimate  concern  was  the 

•i    Cf.    Pool.-.    fJhisf ration*   nf   M§dkVOl   TkOUffkt,   268    ft. 

H    Dc    Hcfuprr.it  ion.-    I.  rr.ie    sanctae.     Cf.    FippU.    />  >m    Gtrson 
to  'i'ratiiis,  81. 

i»  De   Reg.  Prime,   I,    i-6. 


G  FOUNDATIONS    OF    SOVEREIGNTY 

mechanism    of    .salvation     more    earthly    questions    could 

hardly  hope  to  predominate,  Yet  within  the  unity  tjpi" 
Bed  hv  Koine  a  further  unity  musl  be  conceded.  If  the 
oneness  of  pope  and  emperor  could  be  conceived,  above 

the  teeming  dualism  of  the  world  they  gOVeni,  there  W( 
fei    to  doubt,  and  fewer  still  of  eminence  to  suggest,  that 

the  emperor  was  not  the  lord  of  the  secular  world.  Koine 
was  the  last  of  the  great  Bystem  of  irorld-empires.  Even 
in  pre-ChrisI ian  times  the  conscious  greatness  of  its  mi>- 
sion  mighl  teem  to  dr^y  the  sceptic.     It  gained,  at  hast 

for  theory,  new  sanction  from  the  life  of  Christ,  and, 
after  its  transfer  from  Rome  to  Byzantium,  it  came  to 
Germany   ordained    of   God.      So   might   the   empire   still 

rule,  even  if  in  appearance  only,  the  lesser  princes  of  the 

world.  Writers,  indeed,  interpreted  differently  the  de- 
gree of  the  imperial  power.  The  lawyers  tended  to  make 
the  emperor  in  a  full  sense  dondmu  jntnirfi;  M  for  the 

eategories  of  jurisprudence  search  always  for  the  widest 
content.  Aeneas  Sylvius,  in  his  Germanic  days,  was  full 
of  similar  notions.1  But  to  Ockham,  with  his  native 
English  power  to  compromise,  impcr'ium  was  but  a  vague 
suzerainty;1  and  the  wisely  generous  Nicholas  of  Cusa 
made  imperial  power  no  more  than  a  zeal  for  the  welfare 
of  all  Christian  men.17 

ii 

That  last  thought  is  important;  for  it  warns  us  against 

the  false  simplicity   which   would   summarize   the  political 

thought   of    the    middle    ages    in    a    single    phrase.      Not, 

indeed,  that  such  an  ultimately  desired  unity  of  control 

U  Cf.  Baldus,  TI,  Feud,  36,  1-13. 
w  Dp.  Ort.  $i  duet.  Ch.  -'. 

i«  Oct...  q.  II.  Cs.  a  Dial.  Ill,  tr.  2,  1,  2,  Ch,.  26-8. 
i*  Nich.  Cut.  Dc  Con.,  Cath.  Ill,  Ch.  i. 


FOUNDATIONS    OF    SOVEREIGNTY  7 

irai  no*  Ita  pervading  temper,  Bui  struggling  alongside 
that  powerful  current  lesser  bul  -till  significant  streams 
may  be  detected*     The  irorld  <ii<l  not  stand  still  in  an 

while    the   conflict    between    Glielf   and    (ihilx -llim-    was    d< 

cided.  The  arrival  of  Its  peoples  at  nationhood  was  i 
decisive  factor  in  tin-  Reformation;  and  the  breakdown, 

in  its  rigid  form,  of  the  feudal  system  marks  the  trans- 
ition to  a  more  complex  economy.  The  ideas  which  sur- 
vived did  not]  indeed,  attain  full  growth.  What  was 
mainly  lacking  to  them  was  the  administrative  mechan- 
isms by  which  alone  their  translation  from  concept  to 
fact  might  have  hem  seemed.  The  doctrines,  as  a  conse- 
quence) are  vague  and  inchoate,  wan  ghosts  that 
the  substance  of  institutional  form;  and  it  i>  only  from 
Mich  splendid  failures  as  Arnold  of  Brescia,  or  some 
accident  lv  preserved  sermon  of  John  Ball,  that  we  can 
glean  how  vital  they  were  to  their  proponents.  They 
represent  in  sum  an  effort  towards  a  philosophy  of 
emancipation  which,  had  it  been  able  to  secure  effective 
mechanisms,  might  well  have  challenged  the  medieval 
notion  of  unity  at  its  source.  All  theories  of  unified 
allegiance  are  strong  precisely  because  they  hew  their 
way  in  a  system  whereby  the  common  life  of  nun  i^  made 
possible.  Notions  of  liberty  are  always  in  more  difficult 
case.  For  their  very  basis  is  an  admission  that  men, 
not  less  as  groups  than  as  indix  iduals,  are  united  only 
by  partial  bonds.  They  thus  lack  the  simplicity  that  the 
postulation  of  some  universal  centre  of  control  mak 
possible;  and  the  loyalties  they  evoke  will,  M  a  con- 
quence,  come  largely  from  men  who  feel  the  pressure  of 
the  system  that  obtains.  Vet,  after  all,  they  are  a 
struggle    to    attain    in    politics    the    realization    <»t     right. 

They  warn  us,  as  we  have  grave  need  to  be  warned,  that 


8  FOUNDATIONS    OF    SOVEREIGNTY 

the  boundaries  of  Ian  and  morals  are  not  Identical.  They 
represent  thai  final  individualism  of  the  human  personal- 
ity for  irhich  do  system  which  seeks  through  law  to  attain 
a  permanenl  stability  can  hope  to  find  room.1- 

There    i>    no    medieval    thinker    who    lacks    some    notion 

that   the  community  as  a  whole  musl   be  master  in  its 

own  house.  I'ower,  so  we  can  hi'  told,  issues  only  from 
the  popular  •fill;1*  and  appeal  will  even  he  made  to  that 
fruitful  source  of  mighty  opposites  the  Corpus  Juris  to 
prove  that  no  right  can  thereto  be  superior.20  Nor  is  the 
theory  of  a  social  contract  wanting;  it  is  in  fact  implied 
in  the  very  substance  of  feudalism.  The  prince's  will 
I..  iy  have  the  force  of  law;  but  Cicero  lias  only  to  quote 
from  tlu'  Twelve  Tables  the  counter-as>rrt  ion  that  the 
highest  law  derives  from  the  welfare  of  the  people,"1  to 
give  the  basis  of  an  alternative  doctrine.  Poptdus  major 
/trinripr,  in  fact,  is  a  maxim  that  recurs  continually  in 
our  texts."  The  legislative  power  is  therefore  inter- 
preted as  being  bound  by  the  limitations  of  popular 
need  ;  M  and  deposition,  even  tyrannicide,  are  the  remedies 
for  misgovernment.  The  medieval  world,  in  fact,  has  a 
genuine  conception  of  popular  sovereignty.  As  a  con- 
quence,  the  idea  of  representation  is  developed  in  a 
fashion  almost  startingly  modern.     We  hear  of  popular 

18  For  an  antithetic  point  of  view,  discussed  in  detail  later,  cf. 
I  u  tace  Percy,  The  ReeponeibUiHee  of  the  League,  esp.  pp.  275  f, 
and  Mr.  A.  B.  Ziiimirrn's  interesting  but  dubious  defence  of  its 
position  in  the  .Vrtc  Statesman,  January  2i,  1919,  p.  4-60. 

i«  Mars.  Pad.,  I,  8,  12.     Nieh.  Cus.  Ill,  Ch.  4. 

20  I,,  l.  Dig.,  i,  4;  hist.  1,  2,  6.  Cf.  Aeneas  Sylv.,  Ch.  8. 

2i  Cf.   Carlylr,    Medieval   PoUt.    Theory,   Vol.    I,   Ch.    L 

The   references  are  Innumerable.    Cf.  John   of   Parte,  Ch.   11 
and  16.    Ocknam.  Dialog.  Ill,  2\  I,  27.    Mars.  Pad.  I,  9. 
Ocknam,  Dial.,  Ill,  J;  l.  30. 


FOUNDATIONS    OF    SOVEREIGNTY  9 

rights  incapable  <>f  delegation  to  s  pari  of  the  peopl< 
Nicholas  of  Cusa  preaenta  us  with  a  parliamentary  system 
as  an  inherent  element  in  the  stat<  Marsiglio  of  Padua, 
Almost  in  the  very  manner  of  Rousseau,  can  ice  no  genu* 
ine  right  to  sovereignty  save  irhere  its  exercise  Is  by  an 
assembly  of  the  people  as  a  whole. 

Nor  is  this  all.     The  medieval   time  is   full  of  law; 
and  the  notion  of  absolute  power  was  carefully  limited  by 

attention  to  the  principles  of  abstract  right.  It  cannot, 
indeed,  be  said  that  this  doctrine  was  at  all  certain  of 
its  ground.  Natural  law  was  distinguished  from  the  posi- 
tive law  which  derived  from  government  with  a  care 
that  suggests  that  the  medieval  publicist,"'  like  the 
modern  thinker,  was  baffled  by  the  conflict  between  ethical 
demand  and  political  need.  But  it  was  at  least  seen 
that  positive  law  was  a  definitely  human  relationship;  and 
if  the  king  made  binding  that  which  expressed  his  will, 
at  least  the  thought  did  not  disappear  that  title  of 
positive  law  does  not  possess  the  right  of  natural  law.* 
It  was,  for  instance,  general  medieval  doctrine  that  all 
princely  acts  which  go  beyond  the  moral  purpose  of  the 
state  were  null  and  void.  Bartolus  himself,  in  refining 
almost  to  vanishing  point  invasions  of  right,  was  still,  at 
the  end,  driven  to  admit  that  they  were  in  truth  beyond 
desl  ruction.29 

It   is   worth   while   to   reiterate   that    the   structure   of 
medieval    society   gave   emphasis    to    these    notions.      The 
attribution  of  a  special  instinct   for  freedom  to  the  Ten- 
s' Mars.  Pad.  1,  12.     Aquin.  Sunmia.  Theoi,  II,  I,  105,  a.  1. 
-■•  Nidi.  Cus.,  Ill,  Ch.  ft,  12-13. 
M   Mar^.   Pad.,  1,   12  -IU. 

•t  Aq.  Summa  TheoL  II,  1,  wv-2. 
•i  Ockham,  Dial.,  Ill,  'J;  I,  Ch.  BO. 

2«  Bart.  Conim.  on  Dig.  Vet.,  Tart   I,  p.  30,  §  22. 


10         FOUNDATIONS    OF    SOVEREIGNTY 

tonic  peoples  is  perhaps  an  unwise  guess.  Bui  the 
pervasiveness  of  the  contractual  notion  in  feudalism  can- 
not be  without  significance.  It'  the  lord  had  rights,  he 
had  also  duties;  and  diffidatio  was  a  reminder  thai  feudal- 
ism and  a  democratic  BOCisJ  contract  would  not  be  Bi  range 

bedfellows.  English  kings  were  always  making  promi 
of  good  conduct;  and  even  if  they  broke  them  with  a 
striking  carelessness,  we  at  hast  have  evidence  in  the 
Coronation  oath  and  thai  Btrange  attempt  in  Magna 
Charts  at  the  Legalization  of  rebellion,*  to  show  us  that 
the  king  and  the  Law  were  not  synonymous  term-.  Brac- 
ton  himself,  indeed,  has  told  us  that  lex  is  rex;  n  his 
universitas  regnk  may,  on  occasion,  find  wan-ant  for  the 
use  of  striking  powers.  The  articles  of  deposition 
against  a  Richard  II  who  had  striven  to  be  'cnticr 
empereur  dant  son  ro'udmc  show  a  world  to  which  the 
thought  of  kingly  omnicompetence  is  still  alien;*1  and 
it  is  followed  by  a  constitutional  experiment  which  still 
gives  cause  for  wonder.  Radicalism,  in  truth,  was  not 
unknown  to  the  publicists  of  the  medieval  time. 

Vi  t  these  democratic  theories  do  not  secure  the  valida- 
tion of  event-.  The  reason  is  char  enough.  To  secure 
popular  rights  in  any  substantial  fashion  required  ad- 
ministratis safeguards  which  hardly  existed  before  the 
French  Revolution.  We  can  Bee  even  before  the  Reforma- 
tion the  growth  of  ideas  more  suited  to  the  prevailing 
temper  of  the  time.  For  the  medieval  period  is  full  of 
privilege  and  barriers  of  a  sort  which  stood  in  the  way 
of  natural  territorial  unity.      The  king,  to  take  a  natural 

30  Ch.  61. 

3i    Br;. Hon,  f.,  Bb,  107.     Cf.   Noti    Bookt  I,  29-33. 

ti  Braetoa,  f.,  nib. 

M   H,,t.   Par.,  Ill,  417-22. 


FOUNDATIONS    OF    SOVEREIGNTY         11 

focal  point,  emerges  as  an  obvious  centre  ol  appeal;  and 
it  is  not  difficult,  by  making  hifl  power  capacioufl  enough 
to  meet  political  need,  to  seek  an  outlet  from  inconvenient 
immunities.  Roman  law  added  its  organizing  strength 
to  such  apparent  need.  From  the  though!  ol  communi-*/ 
ties  ire  pass  to  that  single  community  winch  is  the  state. 
It   needs,  and  gains,   the   powers   which   shield   it    from 

destruction.      It    secures    the    rights    which    no    law    can 

impair  because?  without  them,  it  would  cease  to  be  i 
state.  We  may  hear  of  inalienable  rights  of  popular 
sovereignty;  but  metaphysical  abstractions  arc  hardly 
strong  enough  to  cope  with  the  force  of  a  dominating 
personal  will.  The  legists  bring  their  logic  to  bear  upon 
the  problem.  It  does  not  prove  difficult  to  show  that 
natural  limitations  mean  no  more  than  moral  limitations; 
and  thence  it  is  but  a  step  to  urge  omnipotence.  So  even 
Wyclifs  good  man  mav  own  the  whole  world;  but  in  the 
face  of  its  possession  by  graceless  men,  passive  obedience 
is  his  lot.  The  state  is  not,  until  the  time  of  Hobbes, 
formally  held  free  from  the  bondage  of  moral  law;  but  the 
medieval  thinker  was  baffled  if  the  state  refused  obedience 
to  it.  Doctrinaire  Whiggism  such  as  that  of  Aquinas 
was  bound  to  meet  the  fate  of  William  FitzOsbert.34 

What  happened  may  perhaps  be  stated  in  a  slightly 
different  fashion.  The  medieval  state,  it  was  seen,  must 
be  explained;  and  variants  upon  the  teleology  of  Aristotle 
were  the  weapons  most  apt  to  the  purpose.  The  individ- 
ual may  be  an  end  in  himself  —  for  the  Christian  notion 
of  personal  salvation  has  a  significance  no  student  of 
the  history  of  democracy  may  forget  — but  the  state  also 

exists  for  its  own  separate  purpose.  Even  with  the  com- 
peting purpose  of  the  Church   in  view,   men  like  John  of 

34  Hovtilcn,  IV,  5. 


12         FOUNDATIONS    OF    SOVEREIGNTY 

Paris  and  Gerson  '  can  argue  thai  the  purpose  of  the 
itate  is  not  leai  noblj  moral;  irhile  &larsiglio  charged 
it  irith  the  care  of  the  good  life  in  a  way  which  seemed 
to  render  needless  all  ecclesiastic  function.       Hut  if  the 

.state   has    purpose   it   must    have    rights   therewith    to 

guard    it;   and    those    rights    pass   easily    into   a    notion   of 

supremacy.  It  was  thus  an  inevitable  step  to  inquire  into 
the  technique  whereby  the  purpose  may  he  besi  effected. 
The  state,  it  is  thai-  enough,  must  have  i he  means  of 
achieving  its  goal.  Nothing  must  stand  in  the  path;  and 
whatever  tin-  form  of  organization  that  obtains,  some 
visible   wielder   of   sovereignty,   a    people,   a   prince,   an 

assembly,  must  he  indicated.  The  final  power  in  the  com 
munitv  is  thus  collected  at  a  single  point  within  its 
institutional  structure.  To  be  a  member  of  the  com- 
munity comes  to  mean  to  be  a  member  of  the  state  and 
subject  to  its  claim-.  Hut  already  its  purposes  are  so 
wide  that  the  claims  of  lesser  groups  are  relatively  un- 
important. State  and  society  have  become  equated;  or, 
rather,  in  the  same  way  as  with  Hegel,  the  highest  ex- 
pression of  the  social  purpose  has  become  the  Btate. 
Salus  populi  means  the  state's  well-being,  and  the  well- 
being  of  no  other;  for  it  is  its  nature  to  be  an  absorptive 
animal.  The  state  becomes  self-sufficing,  therefore  to 
the  state  the  unique  allegiance  of  the  individual  is  due. 
It  ceases  to  think  of  superiority  as  existent  outside  itself. 
The  state  is  that  which  has  no  superior,  wherefore  all 
other  forms  of  social  organization,  as  guilds  for  example, 
are  subject  to  its  control.  The  dawning  Bense  of  national- 
ism was  at  hand  to  give  that  concept  an  enviable  sharp* 

as  John    Paris   Ch.    18. 

a«  Cf.  Schwab,  Johanna  demon,  p.  88. 

»7  Mar^.   Pad.,  I,  Ch.    t-6. 


FOUNDATIONS    OF    SOVEREIGNTY         18 

I  of  definition.      There  was   thenceforth   to   be   no  lord 

of  the  world.  Imperial  or  otherwise]  tor  the  limple  reason 

that     then-    was    no    single    world.      There    nv  *  r«     England, 

France,  and  Spain.  The  life  of  each  iras  to  he  central- 
ized within  its  ultimate  sovereign.  The  realm  of  England, 
as  its  Parliament  declared,  had  ever  been  so  free  that  it 

had  no  earthly  Sovereign  hilt   God  alone;       and  when   with 

Byzantine  majesty  it  was  alleged  by  Henry  VIII  that 
the  realm  of  England  had  ever  been  an  empire,  it  was  a 
final  assertion  of  the  right  of  the  centralized  Tudor  state 

to  manage  all  matters  that  ini«rht  arise  within  its  terri- 
torial  routines.39 

The  group  was  not  destroyed,  but  put  in  fetters.    The 

state  emerges,  as  the  middle  a^cs  pass,  as  the  institution 
to  which  has  been  transferred  the  ideal  of  unity.  The 
medieval  suspicion  of  pluralism  as  anarchic  has  never 
deserted  the  modern  world,  but  simply  removed  to  the 
mw  basis  of  all  institutions.  The  change,  indeed,  came 
with  much  doubt  and  hesitation.  The  lawyers,  until 
Bodin,  remained  uncertain  whether  there  were  not  some 
shadowy  limits  to  its  rights;  at  least  they  were  uncertain 
enough  to  make  of  office  a  property-concept  about  which 
were    collected    safeguards    subversive   of    Complete    DOWer. 

But  the  facts  went  faster  than  the  theories.  England 
faced  the  chaos  of  civil  war,  and  something  akin  to 
persona]  sovereignty  was,  with  the  Tudors,  thankfully 
accepted  as  a  relief  from  its  manifold  oppressions.  So, 
too,  in  different  perspective,  with  France  and  Spain;  and 
if  in  Germany  imperial  centralization  broke  down,  the 
significant  remedy  was  a  plethora  of  centralized  states. 
Here,  it  may  1"  suggested,  is  the  permanent  significance 

38  Cotton's  Records,  j>.  848. 

39  M   ll.ii.  VIII,  Ch,  18, 


14         FOUNDATIONS    OF    SOVEREIGNTY 

of  Machiavelli.     The  medieval  thinker  grew  to  Bee  that 

the  national  .state  was  necessary  to  achieve  the  perfect 
lift  .  Bui  Machiavelli  saw  that  to  live  well  it  must  first 
have  the  means  to  live;  and  he  painted  in  relentless  phrase 
the  arts  of  <ro\  t  -rimieiit.  lie  summarized  a  development 
perhaps  longer  than  he  knew.  The  wearisome  search  for 
abstract  right  was  largely  impotent  before  concrete  power 
ami  grasping  ambition.  While  the  Councils  of  Bash- 
and  of  Constance  were  struggling  with  eternal  principles, 
the  centralized  bureaucracy  of  Rome  could  give  a  peace 
which,  if  not  ideal,  was  at  least  a  breathing-space.  Effi- 
ciency is  ever  more  apt  than  right  to  action.  Nor  did 
Machiavelli  fail  to  notice  that  the  power  of  popular 
sovereignty  was  too  unconscious  to  be  capable  of  effective 
exercise.  He  saw  that  achievement  rested  with  the  men 
who,  like  Caesar  Borgia,  moved  from  the  immediate  pur- 
pose clearly  seen  to  the  power  consciously  at  band.  He 
sacrificed  an  interest  in  eternal  right  to  the  practical 
rights  that  de  facto  power  so  easily  obtained.  Nor  was 
his  volume  other  than  a  generalization  from  the  hard 
facts  of  his  age. 

The  state  thus  became  the  heir  of  the  Respublica 
Christiana ;  yet  what  its  power  should  be,  events  rather 
than  men  were  to  determine.  It  had  transcended  all  com- 
munities within  its  territory.  It  had  secured  some  single 
organ  as  the  necessary  channel  for  the  expression  of  its 
will.  It  had  postulated  as  essential  the  direct  allegiance 
of  the  individual  citizen.  But  there  were  still  problems. 
If  the  universal  church  no  longer  possessed  the  majesty  of 
old,  it  still  was  universal.  What  if  it  even  yet  stood 
firmly  against  the  invasion  of  its  sovereign  prerogative? 
Nor  is  this  all.  The  state  was  growing  free  from  limita- 
tions of  a  legal  kind  upon  its   power.      But  moral  limit 


FOUNDATIONS    OF    SOVEREIGNTY  L5 

dies  with  slowness  and  men  w«rc  >iill  accustomed  to  the 

majesty  of  ethical  claim.  What  \sa>  Deeded  was  a  mid- 
summer   of    high    credit     for    the    state      What    WBM    d« 

manded  was  a  crisis  irhich  should  threaten  its  existence 

from  without,  and  thus  make  deep  appeal  to  that  primi- 
tive herd-instinct  which  calls  men  to  the  defence  of  their 
own.  Here  the  significance  of  nationality  became  appar- 
ent, for  it  gave  to  the  glorification  of  the  state  an  emo- 
tional penumbra  it  could  have  secured  in  no  other  fashion. 
All  crises  are  unfavorable  to  liberty;  and  it  was  only 
through  the  medium  of  external  attack  that  the  state 
could  shake  itself  free  from  the  fetters  that  remained. 


m 

The  needed  solvent  was  provided  by  the  Reformation. 
It  is  one  of  the  outstanding  paradoxes  of  history  that  a 
movement  which  sought  ecclesiastical  purification  through 
the  medium  of  the  individual  conscience  should  yet  have 
resulted  in  a  greater  measure  of  state-power.  Yet  the 
paradox  admits  of  simple  explanation.  Luther  demanded  \/ 
of  an  obstinate  church  reforms  it  was  unwilling  to  concede. 
Its  refusal  meant  an  appeal  to  the  imperial  power.  But 
the  emperor,  with  a  complex  foreign  policy  to  manoeuvre, 
hesitated  at  an  increase  of  its  problems.  Thence  Luther, 
by  a  simple  evolution,  was  driven  to  make  application  to 
the  prince  of  the  empire.  The  Church,  however,  was 
divine;  and  an  institution  thus  circumstanced  only  power 
similarly  divine  could  change.  Inevitably,  therefore, 
Luther  was  compelled  to  re-awrt  the  divine  character 
of  princely  power.  When  to  his  claim  was  added  the  plea 
of  territoriality  in  religion,  all  the  materials  were  at 
hand  for  subsequent  events.      Luther's  doctrines,  doubt- 


r 


lfi         FOUNDATIONS    OP    SOVEREIGNTY 

|(\ss,  \V(  re  a    t  wo-cdged   \\  i  .1 1  win  ;    for,   I  li'V   admitted,  as   in 

tie  r  isant's  Kevolt,  interpretation  in  ■  democratic  way 
if  men  looked  only  to  their  theologic  substance*  The 
peasant's  defeat,  and  the  irarm  welcome  given  by  Luther 
to  their  opponents'  victory,  emphasized   the  autocratic 

aspect    of    his    \  i«  M  .       What    at    bottom    had    been  ted 

iras  the  right  of  the  state,  through  th<-  person  of  its 
prince,  to  cleanse  the  Church  of  Bin*  Such  claim  implied 
absorption;  and  Henry  VIII  did  do  more  than  give  the 
fullest  expression  that  generation  was  to  see  of  the  new 
Erastianism  in  action. 

JTet,    obviously     enough,     the     Lutheran    doctrine     w  i  ! 

rather  the  chance  weapon  of  a  specialized  encounter  than 
a  generalisation  from  a  fully  realized  political  philosophy. 

The  latter  is  the  outcome  of  the  Counter-Reformation. 
Wars  on  behalf  of  religious  principle  brought  death  and 

misery  in  their  train.  Political  existence  seemed  in  jeop- 
ardy unless  the  full  allegiance  of  men  to  a  unified  state 
could  be  secured  beyond  dispute.  It  might  even,  as  Eliza- 
beth saw  in  England,  and  the  PoUtique$  in  Prance,  be 

necessary    to  admit   the  expediency  of  toleration    s<»   long 

only  as  the  right  of  the  state  to  live  as  a  self-sufficient 
organization  could  he  secured.     And  that,  at  bottom,  is 

the  broad   result    of   the  second   half  of  the  sixteenth   cen 
turv.       Each  stati    adopts  its  special  creed;  and  those  who 

differ  are  given  a  grudging  right  to  their  existence.    But 

right    now    has    a    Special    connotation.      It    is    the    light 

inferred  by  an  Act  of  Parliament,  or  of  an  edict  regis- 
tered by  the  Parliament  and  King  of  France.     It  is,  that 

is   to   say,  a   concession   rendered  by  the  state  to   some 
group  of  its  subjects  whose  destruction   would  he  !• 
profitable  than  the  exertion  might  warrant.     The  right, 
that  is  to  say,  i>  in  its  nature  legal.     We  have  moved  from 


FOUNDATIONS    OF    SOVEREIGNTY         17 

the  medieval  ground  of  universal  ethical  right  to  which  the 

.state   iImU'   must    how,   to  a    righl    of   law    which    tin    state, 

through  itfl  sovereign  organ,  is  alike  privileged  to  make 
and  *<>  interpret . 

Bodin  expresses  in  the  clearesl  fashion  the  theory  to 
winch  we  have  moved*  Elis  hook,  for  thai  very  reason, 
is  normally  taken  as  the  starting  poinl  of  modern  politics; 

for    what    he    teaches    i^,    with    some    difference    of    detail, 

substantially  the  modern  Legal  theory  of  the  state.     Nor 

ina\  we  deii\  it  a  logical  completeness  within  the  narroi 
realm  it   attempts  to   resume.     "All   the  characteristics 

of   sovereignty,"   Baid    Bodin.40  "are   contained   in    this,   to 

have  power  to  give  laws  to  each  and  everyone  of  his  snb- 

jects,  and  to  receive  none  from  them."     The  sovereign 

may  be  one  or  few  or  many,  but  unless  it  is  an  absolute 
power,  it  lacks  the  marks  of  mujestas.  A  long  history 
lies  before  those  words.  From  Bodin  and  through 
Hobbes  to  Austin,  every  legal  analysis  of  the  state  has 
depended  upon  their  substance.  Nor  is  it  possible,  in  the 
sphere  of  positive  law,  to  refute  it.  Jus  est  quod  jussum 
est  is  of  the  essence  of  the  state.  There  must  be  in  every 
organized  political  community  some  definite  authority  not 
only  habitually  obeyed,  hut  also  itself  beyond  the  reach_ 
of  authority.  A  law  which  secured  the  obedience  of 
men  only  on  some  chance  whim  of  temper  would  obviously 
lack     the     sanction     which     political     life     demand-.       A 

sovereignty,  moreover,  which  was  divided  between  a  num- 
ber of  coordinate  authorities  would  lack  for  its  command- 
that    generality   of   universal    application   by   which   alone 

it  can  lie  distinguished  from  a  private  will.     This  it   is 

which  Hobbes  Ban  with  relentless  clearness;  a  will,  to  be 
sovereign,  musl   be  all  or  nothing.      This,  too,  is  the  bead 

De  la  BfmbHqui ,  Bk.,  l,  Ch.  8. 


is         roiNDATIONS    OF    SOVEREIGNTY 

ami    centre    of    Marshall**    constitutional    <  1«  *- i - i « > 1 1 ^ .     a 

jn  people  cannot  suffer  derogation  from  flu-  effi 
tive  power  of  its  instruments.     Habitual  disobedience,  .t 
legal  right  <>f  challengej  srould  reduce  it  to  no  more  than 
that  hopeful  influence  which  Washington  at  once  rightlv 
and  \sitlt  care  distinguished  from  government.     A  church 

or    a    trad*    union    has    a    will.      Hut    over    the    ana    they 

govern  their  trills  are  subject  to  appeal  and  therefore  h  vs 
than  sovereign.     The  courts  do  not  oh.  \  their  mandafe 
or,  rather,  thev  look  to  state  texts  before  thej  give  them 
confinnai  ion. 

So  stated]  Bodin's  theorv  i>  unimpeachable.     Yet   arc 

must     not     forgei     with    what    grave    difficulty    it    made    Its 

way.       To    the    (jtic^tion    why    men    musi    obey    the    law,    it 

answered  onlv  because  the  state  so  willed;  and  it  therein 

forgot    that    the  law,   in   its   view,   iras    no   more   than  the 

command  of  the  state.     There   were   men   unwilling  to 

accept   m)  simple  a  solution.      Even  Bodin  himself,  it  may 

be  remarked,  has  doubts  of  its  adequacy;  for  he  makes 

state  law    morally   hound   by   natural    law   and   the  law   of 

God.  Nor  must  we  forget  the  general  background  of 
bis  argument.  He  was  rescuing  a  state  which  seemed  like 
to  perish  before  the  conflict  of  competing  sects  from  the 
challenge  to  its  existence  their  conflict  implied.  Huguenot 
and   Ligueur  alike  prevented  a  peace  a   pervading  and 

Unimpeachable   authority   can   alone  secure;   and   when    he 

re  bis  prince  these  attributes,  he  was  in  truth  attempt- 
ing their  reconciliation.     It  is  important  to  remember  this 

\<iv  practical  aspect  of  UodinVs  work.  He  was  not 
merely     making    a    scientific     analysis    of    the    sovereign 

pou<r.     He    was    teaching   also    that    a    representative 

lembly  —  a  States-General,  for  example       i^  no  more 

than  a  useful  organ  for  the  registration  of  grievance* 


FOUNDATIONS    OF    SOVEREIGNTY  VJ 

Hi     was    in  teres  tic]    in    the    pie\  ahm  -     of    that    briganda. 

which,  a>  In  argued,  the  contemporarj  Ian  of  treason  <li<l 
10  much  to  promote  He  bas  advi©  ol  value  to  offer  to 
his  age  on  methods  ol  preventing  th<>->.'  revolutions  to 

Ifhich    it    u,i>    M    l.unt ntably    prone.       Hodin,    in    fact,   1 

above  all  a  practical  inquirer  into  the  political  sickness 
of  tin    time.     The  sovereignty  be  defined  was  conceived 

less   xv  it  1 1   a    \  it  u    to   the   metaphvtics   of   his    subject,    than 

us  a  ireapon  •Therewith  to  make  possible  the  special 
remedies  of  which  he  iras  the  advocate. 

Nor  iras  this  all.  To  say,  as  Bodin  said,  that  the 
state  must  be  obeyed  because  it  is  a  state,  iras  to  reduce 
the  problem  oi  political  obedience  within  confines  more 

narrow   than   many   were   then   willing  to   admit.      Behind 

the  problem  of  legal  superiority  there  was,  for  most)  the 

problem  of  that  religious  freedom  legal  superiority  was 
often   so  willing  to   deny.      The   basis   of   law,   that    is   to 

say,  iras  still  for  most  a  theological-political   inquiry. 

Those  who  admitted  the  divinity  of  king-,  as  the  Hugue- 
nots after  1589,  were  mainly  men  who  profited  religiously 
by  their  admission.  It  did  not  help  a  Calvinist  in  Holland 
or  a  .Jesuit  in  England  to  admit  such  doctrine.  A  Catho- 
lic answer,  for  example,  to  James  I,  or  a  defence  of 
Dutch  resistance  against  the  might  of  Spain  was  inevi- 
tably compelled  to  proceed  upon  different  Lines,  Law, 
for  both,  was  compelled  to  assume  a  moral  ba>is  which 
no  purely  legal  fiat  can  pretend  to  claim.  A  law  which 
once  derived  from  God  or  from  the  eternal  principles 
of  nature-  could  not  easily  sutler  reduction  to  the  confines 
of  a  will  too  often  that  of  a  single  human  being.  That 
notion  of  some  right  anterior  to  the  sovereign  and  acting 

as  the  criterion  <>f  its  substance  has  none,  of  course,  <»f 
the  simplicity  which  attaches  to  Bodin's  analysis.     By  its 


20         POl  NDATIONS    OF    SOVEREIGNTY 

\'i\  statement,  indeed,  it  mav  be  rexmrdrd  as  subversive 
of  authority;  for  its  primary  implication  ii  a  doubt 
whether,  1»<  fore  examination  of  its  substance,  the  command 
should  be  <>l>.  \  i  d.41 

lor,  clearly,  ■  Catholic  like  Etossaeus,41  \%  I m >  lought 
a  loophole  for  the  admission  of  the  papal  power,  could 

find    no    comfort    in    a    doctrine    which,    in    itl    final    result, 

equated  legality  and  right   for  fh-  of  peace.     Hi* 

irting-point,  and  it  was  that  of  Presbyterians  such  ai 
Buchanan  also,  was  that  right  was  greater  than  peace. 
Struggling  for  a  freedom  thai  an  admit  ted  n  priori  pre- 
eminence of  the  state  would  hare  denied,  what  he  sought 
was  first  to  show  that  consent  is  of  the  essence  of  com- 
munity, and   next    to  argue  that   the  onlv   form   in   which 

consent  is  institutionally  satisfactory  is  where  sovereignty 
i^  admittedly  popular  in  its  nature.  But  popular  sover- 
eignty as  an  administrative  problem  will  issue  always  in 

limitation  upon  the  sovereign  power  that,  functions  in  the 
daily  business  of  the  state.  Or,  rather,  it  will  be  shown, 
as  it  Is  in  substance  argued  by  all  the  Monarchomachs, 
that   the  conception  of  unlimited  power  is  impossible  of 

equation  with  an  ethical  conception  of  right.  This  argu- 
ment can  take  the  most  diverse  forms.  Francis  Eiotman, 
in  the  Franco-GaJUa^  sought  to  give  the  theory  of  popular 

ereignty  an  historic  basil  by   an  analysis  of  previous 

French   history   in   democratic   terms.     Althusius   urged 

that  ultimate  power  being  always  in  the  people,  the 
active  ruler  is  no  more  than  what  the  delegation  of  his 
office  makes  him;  and  the  chief  magistrate  of  Kmd«n 
must    have   been    well    acquainted    with    the    narrow    limits 

of  a  delegated  power. 

«i  Cf,  my  paper  on  'it.-  "Politics]  Theory  of  James  r  in  the 

Political    Sri,  in-,     < \>  un  rt  i  rl if     for    JUDO,     LflSt 

m  <  i.  Piggta,  Prom  Q*r$on  i<>  Orotku,  p    189  f. 


FOUNDATIONS    OF    SOVEREIGNTY         21 

It    |fl    noteworthy  it    is   also    natural  that    all    tli- 

counter  theories  to  Bodin'l  should  mainly  have  .sought    the 

means  of  religious  freedom*  Had  Bodin  made  tin-  sover- 
eign powerlesa  in  the  realm  of  ipirituaJ  things,  the 
passionate  search  for  release  from  the  toils  of  his  logic 
would  doubtless  have  been  absent.  Bui  then  his  -«>\.  reign 
would  have  lacked  Majestas,  irhich  had  been  defined  as 
omnicompetence.  Yet,  in  truth,  tin-  history  <>i"  Rngland 
in  tin  ateentfa  century  shows  clearly  that  tin-  accept- 
ance of  conditions  upon  which  religious  peace  Was  pos- 
sible made  the  theory  of  parliamentary  sovereignty  a 
commonplace  within  two  generations.     The  source  of  the 

Struggle,  that  is  to  say.  Against  his  doctrine  lay  in  that 
sphere  of  experience  in  which  men's  deepest  passions  were 
then  engaged.    It  needed  only  the  great  weariness  of  most, 

and    a   generous    insighl    such    as    that    of    William    III    to 

secure  the  self-denying  ordinance  of  the  Toleration  act. 
Thenceforth,  the  sovereignty  of  the  English  Btate  had, 

for  formal  Law,  no  harriers  in  its  way.  Nor  was  if  with- 
out BUggestivenesS  that  the  first  revolutionary  constitu- 
tion of  France  should  enounce  a  doctrine  that  is,  in 
I  s>ence,  indistinguishable  from  the  English  theory.4 

IV 

What,    in    tact,    the    removal    of   the    religious    problem 

-nis  to  connote  is  the  appearance  of  a  ground  where  all 

posx  sM'd  of  citizenship  may  meet  in  common.  Thai  was 
the  basis  of  Bodin's  effort,  and,  at    bottom,  it    is  the  lar. 

outlines  of  his  theory  thai  were  accepted.  Hut  the  prob- 
lem was  in  fact  more  difficult  than  Buch  statement  would 

indicate.      It  made  the  Btate  sovereign,  but   it   did  not  de- 

43  CoQSttt  <»f  1791,  Art.  II,  _' 


FOUNDATIONS   OF   SOVEREIGNTY 

fine  the  state  with  sharpness.      Those,  therefore,  whom  the 

pit  laun  of  «  venta  compelled  to  take  refuge  in  more  libera] 
thenno,  Althusiui  for  example,  diacovered  in  the  people 
m  ■  whole  tin  roota  of  the  .^tat  The  Jeauil  affection 
for  popular  aovereigntj  reata  upon  their  clear  conception 
that  once  the  consent  of  the  people  to  governmental  acta 
may  t><  regarded  aa  hut  partial,  the  straight  path  li<> 
open  for  papal  interferes        The  doctrine  of  a   locial 

Contract,  in   Bhort,   i-,  above  all,  a  doctrine  of  limitation 

upon   the  governmental  power.     It  was  upon  this  thai 

the    acute    mind    of    Hobbes    seized.      J I  is    stay    upon    the 

continent  had  doubtleaa  given  him  acquaintance  with  the 
subtle  fashion  in  which  the  papal  defenders  destroyed  t lu- 
st rene  confidence  of  the  state  in  its  sovereign  BCparateneSS. 
His  task  it  therefore  was  to  make  the  social  contract 
the  vehicle  of  despotism.  His  is  the  first  book  in  which 
a  final  specific  of  order  is  erected  upon  the  basis  of 
popular  consent.  How  admirable  bis  method  was  Sir 
Robert  Filmer  has  testified  when  even  his  horror  of  the 
source  in  which  Hobbes  discovered  power  could  not  with- 
hold admiration  from  the  method  of  its  exercise.44  Vet 
the  facts  were  stronger  than  the  simplicity  of  Hobb 
formula. 

It  is  char  from  any  primary  analysis  that  the  essence 
of  the  state  turns  upon  the  reciprocal  relations  of  govern- 
ment and  citizens.  A  state,  after  all,  ia  fundamentally  a 
territorial  society  divided  into  government  and  subjects. 
A-  matter  of  law  that  government  may  possess  unlimited 
power;  in  actual  fact  there  will  always  be  a  system  of  con- 
ditions it  dare  not  attempt  to  transgress.  Yet,  often 
enough,  a  government  will  seek  to  pass  beyond  tho 
boundaries.      James   IT   made   that    effort,   and    the    result 

**  Observations  Concerning  the  Origin*]  of  C.nrrrnmrnt. 


FOUNDATIONS   OF    SOVEREIGNTY         28 

was  the  English  Revolution*     The  work  of  Locke  onlj 

'repeats   the  earlier   protests   of   men   like   Sydney    and 

'Julian1  Johnion.     There  i^  tome  degree  u i"  popular  con 

sent  which  may  not  Miller  degradation.  Locke  leeki  to 
wrest  the  palm  of  logical  right  from  the  broi  of  Hobbes 
hv  showing  that  tin-  results  of  unlimited  power  destroy 
tin-  possibility  of  its  admission.  He  realised  irell  enough 
that  the  organ  which  transacts  the  daily  businesi  of  the 
state  will  possess  the  main  influence.  Sovereignty  — 
Locke  does  not  use  the  word  —  flows  always  towards  the 

Centre  of  administration.  That  is  why  so  much  of 
Locke's  thinking  turned  upon  limitations  of  governmental 
power.  That  was  why,  not  only  for  himself,  but  for  all 
his  successors  to  the  time  of  Rousseau,  the  legal  theory  of  . 
sovereignty  proved  always  too  narrow  for  final  accept- 
ance. It  would  not  work  because  the  turning-point  in 
political  judgment  was  less  the  right  to  will  than  the 
substance  of  the  thing  willed  by  the  organ  to  which 
ultimate  power  was  confided.  Locke's  view  was  satisfac- 
tory so  long  as  Walpole  gave  England  peace  and  Chatham 
gave  her  victories.  The  effort  of  government  fitted  what 
of  popular  desires  was  discoverably  articulate.  But  after 
the  attempt  of  George  III  to  pervert  constitutional  forms 
to  despotic  purpose  the  view  of  Locke  was  in  its  turn 
inadequate.  A  new  formula  was  needed  for  a  state  of 
which  the  roots  had  spread  beyond  the  voting  audieno 

The  birth  of  modern  English  radicalism  that  is  symbol- 
ized by  the  foundation  of  the  Society  for  the  Support  of 
the  Hill  of  Rights  saw  the  full  recognition  of  Rousseau's 
influence.  The  resident  of  a  state  in  which  the  will  of  all 
had  been  narrowed  to  the  expression  of  royal  desire,  his 
generous  nature  was  revolted  at  a  technique  by  which  the 

«5  Cf.  my  Political  Thought  from  Lodb  to  Bentham.  (hv  J  and  5. 


i 


/ 


24         POI  NDATIONS    OF    SOVEREIGNTY 

popular  i_r<>(><l  failed  of  general  achievement.  H«  wrote, 
ordingly,  the  antithesis  of  Hobbes'  new.  What  im- 
pressed him  uai  the  fact  thai  oner  the  final  power  p 
from  the  people's  hands  the  will  winch  secures  expression 
is  always  a  will  that  represents  a  special  private  interest. 
Thai  trill  mi/jht,  as  111  the  France  <>t"  Louis  \\,  he  secure 
enough  to  win  its  ray;  but  Rousseau  did  not  stay  at 
order  as  the  final  end.  What  he  sought  was  justice; 
and  his  tin  ory  of  the  general  prill  is  the  mechanism  Pfhereby 
justice  may  be  attained,  iu  effect  is  immediate  and 
striking.  Priestley  and  Trice  in  England  ^r<>  hack  at 
once  to  the  full  rigor  of  popular  sovereignty  for  tin- 
roots  of  right.      Law  is  no  longer,  for  them,  ■  command, 

hut  rather  the  expression  <>f  genera]  consent  to  measw 
which   satisfy   general    need.     The   inadequacy   of   I*  i^.il 
right   involves   the  rejection  of  the  order  it   maintains. 
The  great  effort  of  Burke  was  his  attempt  to  show  that 

the  legal  order  cannot   thus  easily  he  rejected.      It  is  not, 

he  urged,  a  simple  question  of  supplanting  inherited 
rrong.     It  is  rather  a  problem  of  whether  the  novelties 

secured  are  Likely,  given  the  human  materials  with  which 

we  have  to  work,  to  be  an  improvement  upon  the  accred- 
ited  institutions  of  the   past.      What   he  denied   in    R0U8- 

111  was  the  lat ter's  willingness  to  force  political  problems 

within  a  BUUple  Bet  of  Categories.      Therein,  most  patently, 

Burke  was  right.     The  genera]  will   in  which  Rousseau 

put    his   confidence   is   impossible  of  discovery   outside   the 

parish.  And  Godwin,  of  Rousseau's  disciples  by  far  the 
most  logical,  was  willing  to  draw  the  obvious  conclusion 
;ind  refuse  the  right  of  power  outside  the  parish.     Therein 

all  action  may  be  horn  of  free  consent.  Once  its  bound- 
aries are  overp  1  •  I,  the  element  of  coercion  enters.  The 
will  which  operates  does  not  merge  our  personality  within 


FOUNDATIONS    OF    SOVEREIGNTY 

itself.  For  us  it  is  restraint;  and  Godwin  argued  thai 
the  limitation  is  ever  exercised  in  the  interest  of  private 
selfishness. 

Certainly  the  notion  of  a  general  will,  a^  it  is  shaped 
in  Rousseau's  hands,  has  Little  of  value  to  contribute  to 
the  problem.  If  it  means  thai  right  must  prevail,  it 
dwells  in  the  realm  <>f  purpose  without  necessarily  effect- 
ing its  realization.  If,  as  Rousseau  would  seem  to  imply, 
it  means  majority  rule  there  are  fen  of  temper  bold 
enough  to  argue  that  majorities  are  always  in  the  right^j 
But  there  is  a  more  difficult  problem  which  Rousseau — j 
consistent! v  evaded.  The  modern  state  must  confide  its 
governance  to  relatively  few  hands.     The  prevailing  will 

i->    therefore,    and    inevitably,    no    more    than    a    random 

sample  of  thai  congery  of  wills  of  which  it  is  composed. 
And,  for  the  purpose  of  law  it  is  to  that  prevailing  will 
that  sovereignty  must  be  intrusted.  Such  ■  conclusion, 
indeed,  Rousseau  scouted  with  scorn;  the  English  people, 
he  declared,  are  free  only  at  election  time.  Vet,  upon 
the  scale  of  modern  life,  the  alternative  of  direct  gov- 
ernment is  unthinkable.  What  we  can  do  is  to  insure  s 
that  those  who  wield  th«'  sovereign  power  derive  from  s 

wider  circle  than  at  anv  previous  time.  We  can  be 
tolerably  secure  that  the  influences  which  guide  them,  the 
interests  they  will  weigh,  are  less  simple  than  before  the 
ev<  nts  of  1789.  The  Bense  of  responsibility,  the  penalty 
for  perversion,  go  deeper  than  at  anv  previous  time. 
The  wills,  that  is  to  say,  to  which  respect  is  due  are  mo 
numerous  than  in  the  past.  The  subconscious  limitations 
with  which  the  governing  power  is  surrounded  are  more 
complex  than  when  politics  was  the  privileged  possession 

of  a  leisured  class.      That,  at   bottom,  is  the  debt   we  ow. 

to  Ilousseau'>   teaching.     The  purpose  he  had   in   view 


26  FOUNDATIONS    OP    SOVEREIGNTY 

u  i>,  at  le*Bi  ultimatcl  v,  as  inescapable  n^  Itl  proposed 
mechanism  was  fruitless.  What  he  made  impossible  RTM 
any    final    ma  in  t  <  11.1  DCC   of    those    legal    privilege!   l>v    which 

the  existence  of  ■  decaying  system  is  prolonged. 


The  foundations  of  sovereignty  are,  after  Rousseau's 

time,    most     largely    conceived    in    terms    of    the    synthesis 

he  envisaged.     Bentham  and  Austin,  at  bottom,  did  little 

more  than  translate  the  purpose  he  desired  into  the  special 

legal  institutions  adapted  to  their  time.     The  state,  with 

them  as  with  him,  differs  from  every  other  form  of 
organization  in  that  it  defines  a  common  ground  upon 
which  the  interests  of  men  may  be  held  identical.  The 
lawyers  present  us  with  a  state  whose  sovereign  organ 
has  unlimited  and  irresistible  power.  The  philosophers 
have  reinforced  the  legal  concept  by  drawing  attention 
to  the  greatness  of  the  purpose  by  which  the  state  lias 
been  informed.  They  express,  so  to  speak,  the  unex- 
plored teleology  of  the  legal  system.  The  lawyer  merely 
describes  the  ultimate  source  of  rights;  the  philosopher 
justifies  that  source  by  an  analysis  of  the  mission  it 
implies.  In  either  case,  the  hypothesis  18  one  of  unity. 
In  any  conflict,  the  state  is,  a  priori,  bound  to  triumph 
because  the  aspect  of  man  that  it  expresses  is  common 
to  us  all.  For  the  state  as  a  philosophic  conception, 
there  is  neither  Jew  nor  Greek,  neither  bond  nor  free. 
We  meet  there  upon  the  common  ground  of  identical 
citizenship.  That  IS  why  the  state  is  held  to  be  the 
ultimate  expression  of  the  social  bond.  All  other  forms 
of  organization  have  a  certain  partial  character  about 
them.      The  state  embraces  all  men  by  its  territorial   na- 


FOl'N  NATIONS    OF    SOVEREIGNTY  87 

turr.       It.    is    universal    because    it     il    the    OM    compulsorv 

form  of  associat  ion. 

Yet,  in  rach  an  outlook)  the  implied  historic  back- 
ground   of    this    assertion    can     hardly     be    said     to    ha\e 

been  thoroughly  explored.     The  national  slate  made  o 

of  unity  as  a  weapon  against  the  aggn  —ion  of  Koine. 
It  used  unity  as  an  in-» t  runient  in  an  international  con 
trover> v;  to  survive  againsi  the  furious  tides  of  Ref- 
ormation and  Counter-Reformation  the  national  state 
was  driven  to  be  one  and  indivisible.  For  such  a  con- 
flict, the  hypothesis  of  unity,  with  the  structure  it  im- 
plie8|  has  a  meaning  too  valuable  to  admit  denial. 

But  to  move  from  that  unified  sovereignty  which  IS  ■ 
protective  against  external  attack  to  the  more  complex 
problems  of  internal  arrangement  has  no  necessary  val- 
idity. Internal  change  is  movement  against  the  interests 
of  an  existing  order  which  the  sovereignty  of  the  state 
i-.  as  a  matter  of  history,  used  always  to  preserve.  Its 
legal  right  to  be  merges  without  the  necessary  inquiry 
into  ethical  justification.  Some,  as  Hobbes,  may  argue 
that  the  price  of  resistance  is  always  greater  than  the 
value  it  obtains.  Others,  as  T.  II.  Green,  may  urge  that 
ire  confront  the  state  in  fear  and  awe  because  the  pre- 
sumption in  resistance  is  always  against  ih.  Otlur* 
again,  as  Bosanquet,  may  give  the  state  unquestioned 
right  upon  the  ground  that,  ultimately,  it  will  come  to 
summarize  the  best  of  oursclvt  I,  Yet  the  simple  fact  is 
that  from  the  standpoint  of  internal  relations  the  true 
heart  of  a  state  is  its  government;  and  the  unity  it  rep- 
resents is  not  so  much  the  interest  of  its  subjects  as  a 
whole  as  of  that  part  which  dominates  the  economic  life 

of    its    members.       England]    France,    America,    mean    on 

domestic    issues    a    complex    of    interests    which    struggle 


28         FOUNDATIONS    OF    SOVEREIGNTY 

among  themselves   for   lUTvival.       In  any   realistic  analv 

then  is  no  ne  srj  unitj  of  j » 1 1 1  j  »* » -<  between  the  groups 
hi-  then  discover,  The  wills  w<-  meet  are  aiming  at 
achievement  which  often  involves  the  destruction  of  the 
legal  order  maintained  by  government.  There  is  no 
relevant  unity  between  the  England  conceived  by  Ireton 
and  the  England  of  the  Levellers.  There  is  no  common 
ground  upon  which  Cobden  and  Lord  George  Bentinck 
could  meet,  The  Anglican  Church  of  the  seventeenth 
ntury  did  not  seek  to  confer  the  means  of  tin-  good  life 
upon  the  Nonconformists.  The  noblesse  of  the  Ancien 
Regime  did  not  seek  to  share  the  means  of  happiness  with 
the  common  people.  Those  who  possessed  political  power 
on  the  eve  of  the  Reform  Hill  in  1832  did  not  understand 
by  the  good  life  what  it  ni»ant  to  Robert  Owen  or  Francis 
Place.  The  will  that  secures  expression  seems  always  to 
1>»  a  partial  will  seeking  not  so  much  a  general  benefit 
as  to  use  the  vita]  organ  of  the  state  for  its  private  pur- 

pose.  Thai  is  not,  of  course,  to  say  that  general  hen.  lit 
may  not  he  conferred.  Thai  is  not  even  to  argue  that 
there    may    not    he   an    objective    common    good    transcen- 

dentalry  letter  than  the  private  goods  secured.     But   in 

tua]  political  conflict  the  sovereignty  of  the  state  means 

the    sovereignty    of    government.     The    weapons    at    its 

disposal  consi>t(  ntly  register  a  good  not  merely  in  fact 

hut    in    purpose   also   more   narrow   than   the   teleology    of 

the  state  would  seem  to  warrant. 

The  fact  is  that  the  state  as  an  external  unit  seeking 
Survival  in  a  world  of  states  is  never  the  same  to  its 
members  as  that  same  state  in  the  ebb  and  flow  of  its 
internal  daily  life.  The  relations  of  its  parts  ar<\  in 
this  latter  aspect,  unified  neither  in  aim  nor  method. 
What    the    orthodox    theory   of   sovereignty    has   done   is 


FOUNDATIONS    OF    SOVEREIGNTY  29 


e  them  into  an  unity  and  thereby  to  plao   itself 

Hsposal   of   th<     IOCuJ   group   which,  at    any  given 


to  coon 

at    tin-   (!p 

historic  moment,  happens  to  dominate  the  life  of  the  state. 
It  is  not  necessary  to  believe  srith  Gibbon  thai  history  ii 
an  unrelieved  record  of  crime  to  urge  thai  it  is  full  of 
instances  irhere  private  well-being  i^  consistently  victo- 
rions  n<»t  merely  over  public  need  but  also  over  public 
right.  That  i>  uhv  the  legal  theory  of  sovereignty  can 
never  offer  ■  basis  for  a  irorking  philosophy  of  the  state. 
For  a  legal  theory  <>t'  sovereignty  takes  its  stand  upon 
the  beatification  of  order;  and  it  docs  not  inquire  --  it  is 
not  its  business  to  inquire  —  into  the  purposes  for  vrhich 
order  is  maintained.  The  foundations  of  sovereignty 
musl  strike  deeper  roots  if  they  are  to  give  us  a  true 
philosophy.  Above  all  we  shall  need  inquiry  into  the 
psychological  impulses  it  is  the  business  of  social  organ- 
ization to  satisfy.  The  instruments  with  which  we  work 
Ixar  upon  their  face  the  marks  of  a  crisis  in  which  men 
BOUght  at"  all  costs  phase  from  the  misery  of  religious 
difference.  They  do  not  suit  a  temper  in  which  the 
development  of  initiative  in  the  humble  man  is  the  main 
effort  of  the  time.  The  liberty  they  (rained  PfaS  special- 
ized to  the  epoch  in  which  the  recognition  of  difference 
was  |»o>>ible  without  material  consequence  to  individual 
personality.     Since  at  Leasl  the  Industrial  Revolution  that 

day  has  passed.  The  main  effort  is  in  a  direction 
which  challenges  the  legal  rights  established  by  prescrip- 
tion in  the  name  of  an  equality  for  which  our  institutions 

are  unsuited.     The  implied  corollary  of  our  purpose  is 

tli.-  widespread  distribution  of  power.     It  will  need  a  new 

philosophy  of  the  state  to  satisfy  the  institutions  that 
purpose  will  demand. 


Ill  K    PROBLEM   OF   ADMINISTRA- 
TIVE   AREAS* 


It    has    become    almost    a    commonplace    that    we    have 

reached  ■  critical  epoch  in  the  history  of  representative 
government.  Certainly  no  man  would  now  claim  that  tin- 
large  aspirations  of  those  who,  with  Benthani  and  the 
radicals,  fought  the  great  battle  of  parliamentary  reform 

in  the  early  part  of  the  nineteenth  century  have  been  to 

any  adequate  degree  fulfilled.1  They  are,  indeed,  differ- 
ent; for  the  direction  taken  by  political  activities  in  the 
last  fifty  years  has  been  almost  antithetic  to  that  which 
he  would  have  approved.  The  English  state  has  become 
a  positive  state;  by  which  is  meant  that  instead  of  trust- 
ing to  the  interplay  of  possibly  conflicting  self-interests 
for  the  realization  of  good,  it  has  embarked  upon  an 
effort,  for  some  time  at  least  to  come,  definitive,  to  control 
the  national   life  by  governmental   regulation.      We   have 

uhed  the  end  of  that  period  in  which  the  influence  of 
la  (aire  could,  in  any  full  sense,  be  detected."      Meas- 

ures today  seem  politically  and  economically  axiomatic 
which,   to   the   age   of   Benthani,   would    have   seemed    the 

•  Reprinted  from  the  Smith  CbBfjr*  studies.  Vol.  IV,  No.  1. 

1   Cf.  Wsllss,  Human   Xnturr  in  Politics;  Introduction. 

I  Cf.    Dicey,  Law  ami   PubUc  Opinion    (2nd.   ed.);    Introduction. 

30 


ADMINISTRATIVE    AREAS  81 

very  nadir  <>f  itateernanship.     It    mnj    be  laid   without 

much    fear   of   exaggeration    that    no   single   figure    in    the 

fii>t  half  of  the  nineteenth  century,  with  the  doubtful 
except  inn  of  Disraeli,  had  any  accurate  prevision  of  the 
trend  thai  has  been  taken  by  modern  legislation.  Th«  v 
nrere  too  near  the  intellectual  dogmas  of  the  Industrial 
Revolution  to  view  state-action  with  any  confidence;  and 
Lord  Morlev,  albeit  onconsciously,  has  vividly  illustrated 
the  failure  both  of  Cobden  and  Gladstone  to  understand 
the  basic  social  questions.  Nor  is  it  yet  certain  thai 
the  efTort  made  by  the  state  towards  the  relief  of  social 
distress  has  behind  it  the  dominant  sympathy  of  experi- 
enced thinkers  in  our  day.  The  new  theory  of  the  state 
limps  far  behind  its  practice.3 

This  is  true  not  merely  of  England  alone.  In  France 
and  Germany  the  period  of  laisscz-fairc  has  long  passed 
its  apogee;  and,  whatever  its  origins,  the  social  insurance 
of  modern  Germany  has  been  a  remarkable  example  of 
administrative  ability.  Even  the  United  States  has 
emerged  from  the  uncritical  individualism  of  a  pion< 
civilization  to  give  demonstration  of  the  social  ezperi 
ment  made  possible  by  a  federal  system.  Australian 
democracy  is  a  special  study  in  itself;  but,  in  things  like 
the  Court  of  Industrial  Arbitration  which  has  been  made 

so  significant  by  the  wise  administration  of  Mr.  Justice 

Higgins/  its  connection  with  this  .stream  of  thought  has 
been  obvious.  Canada  i>  Less  typical  of  this  attitude;  but 
the  dominance  of  collectivist   legislation   is   even   here   b< 

yond  dispute. 

*  Thouph  it  lies  implicit  in  the  writings  of  men  like  Green  :m<l 
Bosnnqnd  in  one  school  of  though!  and  in  the  new  Uberausm  of 
nun  like  Mr.  .T.  A.  Hobsoii  and  Profesaor  L.  T.  HobhouM  In  mother. 

*  Sec  his  article  in  the  Harvard  Law  tUvttW  foi  November.  1916. 


32  ADMINISTRATIVE    AREAS 

The  change,  particularly  in  England,  Uars  witness  to 
a  striking  reversal  of  emphasis;  nor  i>  it  unfair  to  Sug- 
gest   tliat    it    implies  a   u-rv    real    inert  ax-  in   lniinanit  ariari 

sentiment*  A  itatesman,  indeed,  who  endeavored  to  dis- 
cuss   the    problems    of    poverty    in    a    modern    House    of 

Commons  irith  the  underlying  implications  even  of  such 
radicals  m  Hume  in  one  age  or  Bright  in  the  next,  would 
hardly  be  assured  of  an  attentive  hearing.     The  whole 

basis  of  our  social   philosophy  has  altered   in  a   Sense  that 

can  only  be  appreciated  by  a  close  comparison  of  a  series 

of  years  in  the  parliamentary  debates, 

What  has  happened  is  the  emergence  of  what  Mr. 
Graham  Wallas  has  happily  termed  The  (ireat  Society.1 
It  was  only  in  the  forty  years  after  1870  that  the  full 
force  of  the  Industrial  Revolution  began  to  be  felt;  it  wa> 
only  after  the  Reform  Rills  of  1  SOT  and  1884  that  the 
influence  of  a  working-class  electorate  could  be  perceived 
in  the  tendencies  of  legislation.     It  is  not,  in  truth,  unfair 

to  BUgge8l    that    the   measures   which   were  concessions   b 

fore  1867  were  necessities  afterwards.  The  attitude  of 
a  govt  rnment  to  the  Tuff  Vale  decision  could  not  help 
being  influenced  by  the  solid  array  of  hundreds  of  thou- 

nds  of  voters  opposed  to  it;  and  it  is  possible  that  even 

Mr.  Balfour's  immovability  would  have  been  different  had 

not    a  genera]   election  given  him,  just   previously,  a   new 

ie  of  power.     It   is  no  exaggeration  to  Buggesi  that 

the  measure  produced   in  answer   to   the  demands  of  labor 

would  have  been  perhaps  unintelligible,  and  certainly 
provocative  of   indignation   to   Mr.   Gladstone   and   his 

colleague  -  some  twenty  years  before.  Even  to  the  Royal 
Commission  on  Labour,  in  1894,  standing  as  it  did  on  the 

The  Brit  chapter  of  his  book,  Tki   Qnal  BoeUttf,  seems  to  mc 

the   IjjKi  I  llS  1 1    which   every   investigator   must   follow. 


ADMINISTRATIVE    AREAS  B8 

threshold  of  Ttmperton  w,  EusteU  '  and  .illm  v.  Flood? 
it  would  ha\         incd  reprehensible  audacious. 

If  there  is  thus  ■  shift  in  perspective,  it  bai  not  pro- 
duced a  greater  degree  of  contentment.     Rather  may  it 

DC   OJTged    that    with    the   growth   of    popular    education  — 

and  it  is  will  to  remember  that  the  first  generation  edu- 
cated in  the  public  elementary  schools  has  barely   passed 
the  threshold  of  middle  age —  there  has  conn    .in   im 
ing  desire  for  the  amelioration  of  the  disparities  of  social 

life.1  In  broad  terms,  there  has  been  added  to  the  eharac- 
teristie  English  belief  in  certain  practical  and  definite 
liberties  a  new  confidence  in  the  value  of  certain  practical 
and  definite  equalities.  The  decline,  for  example,  of  the 
individualistic  attitude  to  wealth  in  the  last  generation 
lias  been  wholly  remarkable.  It  is  possible  that  the  his- 
torian of  the  future  will  find  the  securest  traces  of  this 
change  in  the  study  of  the  successive  budgets  of  the  last 
thirty  years."  He  will  compare  the  ideals  of  Mr.  Glad- 
stone as  Chancellor  of  the  Exchequer  with  the  ideals  of 
Mr.  Lloyd-George.  lie  will  note  the  attitude  of  Mr. 
Sidney  Webb  to  grants-in-aid,10  in  our  own  day  and  that 
of  Lord  Avebury  a  generation  before.11  He  will  be  com- 
pelhd  to  conclude  that  the  State,  through  the  agency  of 
government,  has  directly  undertaken   the   control    of   the 

e  [1893]  I.  Q.  B.  (C.  A.)  715. 
7  [1898]  A.  C.  I. 

«  See,  for   instance,  the   remarkable   ipeech   of    Mr.   J.    MoTavish 
reprinted  in  the  appendix  to  Mr.   Albert    Ifanstridge'fl   EZatotrt&jf 

/  iituriiil    Chissts.     The    .same    note    is    apparent    in    the    nmrc    recent 

volume  of  Mr.  Henderson  i  Tht  Aimt  <>f  Lmbor. 

»  As    revealed,    for   example,   in    Mr.    Bernard    Ifallefi    useful 

volume:  Hritish  Ihnhn  it. 

io  Bee  his  (/runts  in  Aid,  especially  the  last  chapter. 

m  Cf.  his  remark  quoted  by  Mr.  Graham  Wallai  in  his  preface 

to  Mr.  K.  (1.   Bannington*!  1'ublic  Utalth   Administration, 


84  ADMINISTRATIVE    AREAS 

national  life;  hut  he  will  he  at  least  equally  compelled  to 

doubt    whether    it     ha-    therebj    ^<>l\ed    any    of    tin-    really 

basic  problem!  that  confront  us. 

It    may   he  admitted   thai    we  have  had,  as   yet,   no  such 

period  of  marked  disturbance  ai  characterized  the  lean 

and  hungrv    years  after   Waterloo:  hut    there  has  been   no 

comparable  epochs  until  our  own  day,  of  similar  economic 
dislocation*  Even  ai  it  is,  the  period  after  the  advent  <>f 
socialized  liberalism  in  1900  bai  been  marked  bv  ■  rest- 
lessness on  the  part  of  organized  labor  of  which  the 
dangerous  proportions  have  again  and  again  been  noted. 

Observers,  indeed,  have  not  been  wanting  to  suggest   that 

we  have  reached  the  point  where  a  transference  of  eco- 
nomic power  from  the  middle  class  to  the  workers  will 
take  place;1'  exactly  as,  in  the  half-century  after  the 
Napoleonic  wars,  the  squirearchy  was  replaced  by  the 
manufacturers  of  the  North  of  England. 

The  truth  surely  IS  that  we  have  evolved  the  great 
societv  without  any  safeguards  that  our  political  insti- 
tutions would   keep  pace  with   the  changes   in   social   and 

onomic  structure.  No  one  who  examines  the  large  out- 
lines of  the  English  governmental  system  can  point  to 
any  vasl  discoveries.  Differences,  of  COUrse,  there  are, 
and  some  of  them  are  fundamental.  The  emergence  of 
a  labor  party,  the  transference  of  the  centre  of  political 
power  from  the  House  of  Commons  to  the  Cabinet,  the 
consolidation  of  that  pre-eminence  given  by  Mr.  Glad- 
stone's lung  career  to  the  office  of  Prime  Mini>ter,  a 
Superb   improvement    in   the  quality   of   the   civil    service, 

11  Cf.  Cole,  The   World  of  Labor,  Chs.  1,  2. 

13  Cf.    especially     l.eroy's    Les    transformations    <ie    la    Puissance 
Publiifuf,    and    Dugnit,    Les    transformations    du    Droit    I'ublir.     A 
trunslution  of  tins  book  bus  been  published  by   13.   W.    Hinbseh. 


AI)MI\ISTK.\TI\  I       AIM   AS 

these,   and    things    like    these,   have   an    importance    no 

man    may    deny.      Hut     no    small     part     of    tllCM    cli;uiK 

lias  been  due  to  the  breakdown  <>f  the  main  hypothesis 
upon  which  the  democracy  of  the  nineteenth  century  was 
founded* 

Here,  once  more,  ii  was  the  influence  of  Bentham  and 
his  followers  thai  was  decisive."  They  believed  thai  all 
men  were  more  or  leu  equal  in  their  original  endowments, 
ami  that  differences  were  tin-  product  of  environment. 
The  more  training  was  equalized,  tin-  more  power  would 

I),  distributed  in  just  proportions  throughout  tin-  State 
I  mversal  suffrage  and  the  breakdown  of  .social   privilege 

thus  assumed  a  very  vital  significance.     Once  tin-  factor. 

of  depression  were  removed  the  natural  equalities  of  nan 
would  manifest  themselves,  and  the  reason  of  their  en- 
lightened   self-interest    would    effect    the    improvement 

desired.  Bentham  expected  the  average  citizen  to  take 
an  interest  in  politics  which  would  be  based  upon  a 
considered  judgment  of  the  questions  at  issue.  Thar 
may  have  been  more  possible  than  it  is  now  in  the  negative 
period  before  1870;  lB  but,  certainly,  since  that  time  it 
has  been  purely  idle  as  a  valid  expectation.  Conditions 
have  become  so  complex  that  no  one  can  follow  any  prob- 
lem in  its  different  bearings  without  an  unremitting  atten- 
tion. The  average  voter  could  not  afford  to  give  the 
time  to  the  consideration  of  affairs  that  their  actual 
understanding  demanded;  nor  had  his  education  been,  on 
any  large  scale,  adapted  to  the  needs  of  citizenship. 
Mr.  Crolv  has  explained  in  an  incisive  work  ""'  how  the 
n  C\\   Mr.  Wallas'  remarks  in  Human   ThtfUM   in  Pulitir*.  jm.i.um, 

and  especially  pp.  199  leq. 

U  Certainly,    I    think,    the    quality    of    parliamentary    debate    was 
higher. 

"  The  Prumint  of  Amtricun  Lift,  pp.   117-12U. 


:;<;  ADMINISTRATIVE    AHKAS 

same  conditions  In M  in  tin-  United  States.     The  founder! 
of  t In  Jacksonian  democracy  had  exactly  the  same  cxp< 
lutions  ;h  the  Benthamite  radicals  of  the  possibilities  of 

the    "average    man";    and    it     was    for    precisely    si  mil  .1  r 

reasons  thai  they  irere  falsified.  Bui  nrhereai  in  America 
the  result  was,  <>n  the  one  hand,  the  divorce  <>f  industry 
and  politics,  save  by  indireci  relation,  and,  <>n  the  other, 
the  growth  of  what  is  termed  the  "boss  Bystem*"  in  Eng- 
land that  was  only  part  I  \  th»'  cast-.  There  did,  indeed, 
continue  thai  n<>f  unbenevolenl  connection  between  politics 
and    society    which    has    given    to    English    official    Life 

no     small     part     of     its     ehann.       Bui      it     made     LeSI     for 

the     emergence     of     a     special     political     class     than     for 

the  increasing  importance  of  the  lawyer  in  politics  and 
the  oeed  for  s  larger  and  more  highly-trained  civil  service. 
Both  these  conditions  have  been  fulfilled;  and  the  English 

civil  service  before  the  war  was  probably  the  sole  ex- 
ample in  history  of  an  efficient  bureaucracy  capable  of 
liberalism. 

But,  as  the  Stale  thrust  more  and  ever  wider  functions 

upon  government,  even  these  provisions  became  inadequate 

to  the  burden.  The  fundamental  hypothesis  of  govern- 
ment in  a  representative  system  is  thai  it  is  government 

h\  di-eiission.  The  private  member  of  Parliament  was 
BUpposed,  as  in  Burke's  magnificent  conception,  to  use  bis 

besl  judgment  upon  the  bills  presented  by  government, 

and  to  \otc  as  the  dictates  of  his  instructed  mind  would 
Beem    to    warrant.      There    has    never,   of   course,   been    a 

time  in  which  such  an  ideal  could  have  been  even  approx- 
imately realized;  and,  certainly,  anyone  who  reads  the 
history  of  the  first  forty  years  of  George  Til's  reign  will 
have  cause  to  deny  that  any  degeneration  has  taken  place. 

But  parliamentary  government  in  the  twentieth  century 


ADMINISTRATIVE    AREAS  37 

ii  still  essentially  different  from  parliamentary  govern- 
menl  m  the  nineteenth.  The  change  Menu  t<>  date  from 
the  emergence  of  Sir.  Parnell;  bui  the  impetus  he  gave 
to  that  change  ii  no  more  than  iti  beginning. 

No  one,  in  fact,  who  considers,  however  Baperficially, 
the  irorking  of  the  English  parliamentary  system  can 
doubt  that  .some  of  its  defects  arc  fundamental,  The 
independence  of  tin-  private  member  has,  for  practical 
purposes,  disappeared.11  The  rigidity  of  party  ties  hs 
notably  been  increased,11  The  reality  of  debate  has 
been  largely  unpaired  by  the  simple  necessity  of  getting 
business  done.     It  is  a  commonplace  to  note  the  apathy 

of  those  not  actively  engaged  in  working  the  machinery 
of  party.  The  unreality  of  party  distinctions  i^  at  Least 
M  obvious  as  in  the  days  when  George  III  deliberate  I  v 
aimed  at  their  obliteration.10  Before  such  issues  as  Home 
Rule  and  Woman  Suffrage  that  party  government  which 
Bagehot  declared  the  vital  principal  of  representative 
government  was  simply  bankrupt.  The  books  are  every- 
where full  of  lamentation  upon  these  inadequacies.  Mr. 
Graham  Wallas,  Sir  Sidney  Low,  Mr.  Ostrogorski,  are 
equally  emphatic  that  any  unlimited  satisfaction  with 
the  workings  of  democratic  government  is  impossible.  A 
large  section  of  English  labor  even  denies  any  real  valid- 
ity to  the  processes  of  the  political  state.20 

Not,    be   it    noted,    that    this    sentiment    is    confined    to 

England  alone.  The  problem  of  representative  govern- 
ment in  France  is  perhaps  even  more  passionately  debated 

17  Cf.  Ix)W,  Oovrrnancr  of  Ennhmd,  Chs.  4,  5. 
i*  Lowell,  C'ox't  riinn  nt  <>f  Bnglomd,  II,  70  fT. 

io  Cf.  Low,  op.  rif..   128   f. 

H  Cf.   Tki   Mirur's  Next  Step  for  the  tust  En^rlMi  discussion  of 
this  attitude. 


88  ADMINISTRATIVE    AREAS 

than    in    Knglnnd  ;    and    what     |fl    significantly     called    M|d 

malaise  tie  la  democratic"  is  then  BTen  more  distressingly 
apparent.       The  conference  of  universal  suffrage  upon 

the    Italian    electorate    has    nol     brought     results    of    anv 

striking  character.     The  principles  of  democracy  lecure 
almost   oniversal  acceptance  in   the   [Jnited  States;  but 
there  is  aowhere  any  profound  content  with  its  workings, 
The  case  of  Germany  is  different  .since  there  it  has  been 
onlv  an  approximation  to  responsible  government   that 

wis  established;  and  Russia,  until  our  own  day,  was  the 
onlv  surviving  example  in  Western  civilization,  of  an 
unlimited  autocracy.  It  should  perhaps  he  added  that 
the  working  of  the  Russian  system  was  calculated  to  pro- 
mote a  confidence  as  unlimited  in  the  rightness  of  the 
democratic   faith. 

In  whatever  analysis  is  made  of  the  conditions  of  the 
modern  representative  system,  two  facts  stand  out  with 
striking  clarity.  On  the  one  hand,  it  is  obvious  that 
there  is  no  deliberative  assembly  that  is  not  utterly  over- 
whelmed by  the  multiplicity  of  its  business;  on  the  other 
hand,  it  is  at  least  equally  clear  that  the  average  elector, 
except  in  times  of  crisis  or  abnormal  excitement,  is  but 
partially  interested  in  the  political  process.  Nor  have 
thi'  attempts   to  cure  the  latter  evil,  which   have  mainly, 

aa  in  Switzerland  and  the  (Jnited  States,  taken  the  form 
of  experiments  in  direct  government)  been  at  all  remark- 
able for  their  BUCCess.  The  statistics  make  it  evident 
that  the  voter  is  more  interested  in  persons  than  in 
events,  and  the  very  size  of  the  modern  state  makes  direct 

=  1  ('(.  Gny-Gnuid,  Li  Process  de  la  DSmocrafif  for  a  pood  sum- 
mary of  tin-  COOt  rmrr-v. 

Mr.    Crolv\    Progressive    Democracy    admirably    analyzes    the 

problem. 


ADMINISTRATIVE    AKKAS  89 

government,  at  the  best]  but  a  partial  aid.       .Much  more 
is  to  be  laid  for  the  possibilities  of  an  adequate  educ 

tional   system   on   the  OOC   hand,   and   an    increased   leisure 

on  the  other.     Certainly  we  too  little  realize  how  piti- 
fully small  is  the  relation  between  the  problems  of  modern 

politics    and    the    curriculum    of    that     element  ar  y    school 
which   is  alone  compulsory  for   the  next    dec add      Modern 

itudiea  in  the  problem  of  industrial  fatigue"4  explain  hoi 

little   of   intellectual    value   can   usefully,   or   even    lightly, 

be  expected  from  a  population  whose  energy  is  so  largely 

consumed  in  the  simple  task  of  earning  its  own  living. 
Something,  too,  might  lure  be  said  of  the  relation  of 
Work  to  that  energy  of  the  soul  which  Aristotle  pro 
claimed  the  secret  of  happiness."0  Certainly  such  evi- 
dence as  wi  have  tends  to  suggest  that  the  increasing 
subordination  of  the  worker  to  the  machine  does  not 
improve  the  intellectual  quality  of  our  civilization.  In- 
deed, it  is  not  impossible  that,  in  the  future,  democracy  . 
if  it  is  to  become  an  effective  instrument,  will  be  compelled 
to  transfer  the  centre  of  importance  for  at  least  a  large 
part  of  its  manual  workers  from  the  hours  of  labor  to 
the  hours  of  leisure.     But  that  day  is  not  yet. 

Nearly  a  century  ago,  the  profoundest  Frencli  observer 
of  the  last  age  analyzed  the  potentialities  of  that  democ- 
racy which,  as  he  predicted,  was  destined  to  become  the 
universal  type  of  government.  An  aristocrat  both  by 
birth  and  by  nature,  but  little  capable  of  that  enthusiasm 
for  the  multitude  with  which  men  so  diverse  as  (iambctta 

M  Cf.  Lowell,  Public  Opin'mn  and  Popular  Government,  ("lis. 
il-lfc 

M  ('f.  (loldmurk,  I  ml  tint  rial  I-\Ui</w  .  fot  ■  Convenient  summary  of 

lit    r<  search. 
25   Cf,   Wallas    //,,    <!r,at  Sucut'l,  C'h.    13,  wliriv  tlir   whole  question 

is  brilliantly  analysed. 


10  ADMINISTRATIVE    AREAS 

and  Gladstone  w  •  >  si^rnally  endowed,  de  Tocqueville 

did  not  regard  its  advent  with  unmixed  ^ladm  .  He 
Found  himself  depressed  by  the  prospect  of  certain  dan- 
gerous contin^iiK  It  iras  possible,  he  thought,*1  thai 

I   peopli    might   barter  it-  responsibility   for  its  own  g<>\ 

mnt  11 1  in  exchange  for  material  comfort*  Democratic 
rule  mighl  degenerate  into  simple  majority  rule  prithout 
an\  safeguard  thai  the  majority  srould  include  the  1" 
opinion  of  irhich  the  society  \sa>  capable*  A  jealous 
level  of  dull  uniformity  mighl  depress  the  use  l>\  each 
citizen  of  his  utmost  talents  for  the  common  good*  The 
richness  and  variety  of  the  national  Life  might  well  h<- 
drawn   into  the   vortez  of  a  governmental   omniscience 

which  Would  emulate  a  theological  authority.  The  it  al 
object    of  a   state,  he   thought,       \\a>    the  nnancij  tat  ion   of 

individuality;  and  he  did  noi  believe  in  the  possibility 
of  its  attainment  where  the  character  <»f  its  government 

was    a    centralized    and    mercantile    parliamentarism.       II,- 

feared  the  influence  »>f  money  upon  its  politics.  He  saw 
with  distress  the  decline  of  religious  faith  without  any 
accompanying  compensation  in  the  form  of  social  sanc- 
tions, lie  perceived  the  novelty  of  the  change  effected 
by  the  Revolution;  Ma  new  political  science,*1  he  said," 

4>i>  in  g       i  ry   to  t  his  in  u    world." 

It    i>  difficult  to  deny  the  truth  of  his  general  attitude. 

Certainly  the  best  approach  to  the  defence  of  democracy 
j>  through  the  analysis  <>f  previous  social  systems.     For 

the   real   justification  of  a  democratic   state   i>,  after  all, 

the  fact  that  under  its  aegis  a  larger  number  of  men  share 

( >n   <!<•   Tocojuerflle'i   democracy!   the   reader  can   consult   the 
n  <fnl,  if  leboriooi,  rohune  <»f   Pierre  M.-mvi,  Et*al  PoUtiqns  *ur 

.11-  ./•(.'  -/.   /  oeqw  ~< Hi' . 

Sec  tin    rltal  Ch.  ?>  of  tin-  fourth  part  of  Ih  morracy  in  .limricii. 

-    Ibid   Pari  ii.  Cb.  s.  m  ibid,  prefsj 


ADMINISTRATIS  I      Mil.  \>  n 

in  tin-  riches  life  can  offer  than  under  any  alternative 
Nevertheless  the  evils  predicted  by  eft  Tocquerille  remain, 

and   it    is  difficult    to  ;iny   imiin  I  lit  1 6    pro   peet    of   tlnii 

amelioration.  Certainly  in  relation  to  the  actual  quality 
of  life,  the  things  for  irhicfa  the  interest  of  men  can  be 
obtained,  it  is  onlv  to  the  slow  influence  of  education 
thai   ire  can  look  for  change.     Nothing  would  be  more 

fatal    to    the   working   of   democratic   government    than    a 

permanent  divorce  between  the  process  of  politics  and 
the  life  that  U  1<  d  by  the  maas  of  men.     The  professional 

politician   is  dearly   n<  ■  r v    in   the   task  of  administra- 

tion; hut  it  would  result  in  the  negation  of  the  democratic 
hypothesis,  if  the  making  of  policy  were  not  conducted 
with  the  active  coop  ration  of  the  body  of  citizens.     Thai 

does  not,  indeed,  imply  that  rotation  of  office  in  which 
the  Greek  states  placed  so  large  a  confide  rice  and  for 
which    the    American     commonwealth     still     cherishes 

singular  and  bo  dangerous  an  affection.  Rather  does  it 
imply  the  perpetual  and  widespread  discussion  of  men 
and    measures,   the   ceaseless    instruction   of   the    public 

mind,  at  which  Harrington  aimed  in  the  clubs  that   formed 

so  attractive  an  element  in  his  Utopia.*     It  means  the 

continuous  exist,  nee  of  an  urgent   public  opinion. 

That    is,   as    Mr.   Walla,    has   recently   shown,"'    no   easy 

matter.     There  are  problems  —  the  nature  of  electricity, 

for   example  —  Upon    which    a    public    opinion    cannot,    in 

the  nature  of  things,  be  formed.  There  are  others  in 
which  a  public  opinion  seems  possible  upon  matters  of 

principle  hut,  to  say  the  least,  extremely  difficult  on 
matters    of    detail.      Thus    far.    it     iniht     he    admitted     P/C 

have   done   hut    little    to    utilize,    in    any    full    &>j;n>\    the 

80  Oceana   (ed  Tol.md).  pp.   157-fiO. 
31    Human    .Xa'tirr    in    Politics,    I'.irt    I. 


IS  ADMINISTRATIS  E     \Ki; as 

material    u»     have.      The   elements    that    go   to    the   making 

of  ■  political  decision  are  rarely  considered  enough,  on 
the  <>Mt  band,  <>i-  iridespn  ad  enough,  on  the  other,  to  make 
an  externa]  and  detached  observer  convinced  thai  the 
proceai  by  irhich  thai  decision  is  reached  is  ai  all  satis- 
factory. We  lia\c  not,  indeed,  descended  so  low  as  that 
"man  of  superhuman  mental  activity  mwnnging  the  affairs 
of  a  mentally  passive  people,*1  irhich  Mill  though!  '  the 
"most  pernicious  misconception  <>f  good  government"; 
but,  atfll,  the  number  <>f  people  upon  whom  s  decision 
depends,  the  number  irhose  thoughts  have  to  be  weighed 
and  consulted,  is  curiously  small. 

Nor,  save  in  one  regard,  is  the  tendency  to  its  inci 
That  i  tception  is  important.     It  is  an  obvious  faci  that 
the  inci         of  governmental  activity  has  implied  a  rasi 

tension  of  the  civil  service.     In  France  it  is  said  that, 

in    normal    times,    one-fortieth    of    the    population    is 

employed.  While  in  Great  Britain  the  proportion  i> 
far  less,  nieasun  s  like  the  Insurance  Act  have  notably 
tended  it;  and  it  remains  true,  as  .Mi*.  Graham  Wallas 
has  significantly  remarked,*4  that  every  scheme  of  im- 
provement   upon    irhich    the    state    embarks    entails    an 

incr-  aSC  in  the  numb.  ]•  of  public  officials.      It  may,  ind« ■<  d, 

be  admitted  that  Buch  increase  is  not  necessarily  a  defeci  ; 
hut  its  magnitude,  in  recent  years,  raises  grave  Questions 

of  which  those  connected1  with  the  public  revenue  arc  only 
the  smallest.  What  remains  vital  is  the  fact  that  th«* 
growth  of  bureaucracy  in  every  civilised  country  d<>.  - 

not    seem,  on    the   evidence,   compatible   with    the   mainfc 
nance  of  a  liberal    spirit.      It  is  difficult    not    to   view   with 

82  lit  j,r.  :>,  ntntivp     Onvrrtimrvf .     (Everyman*^     edition),    p.    202. 

83  LefM,    f.i''"'    <f    /<  I    I'liictimintiin  .•>. 
34    The    Crttit    Snritt,,.   p.    7. 

85   (f.  my  AmtkOfUj  in   The  Modern  State,  Ch.  5 


ADMINISTRATIVE     VREA8  18 

suspicion     the    growth     of     U     aduunist  rat  i\  ••    law    which 

apes  the  purview  of  the  ordinarj  courts.  Hie  revolt 
of  the  French  civil  service  itself,  on  exactlj  thote  grounds 
of  an  incompatibility  with  liberalism  i^«  to  ,i\  the  least, 
remarkable.  The  attitude  of  the  English  working-cls 
to  govcrnmcnl  has,  in  recent  years,  undergone  a  lignif 
can!  change  towards  active  distrust,  and  the  general 
dislike  of  the  public  to  tin-  Insurance  Act  of  1911  is,  in 
this  connection,  noteworthy.  However  beneficial  may 
be  the  consequence  of  social  Legislation  —  and  that  a 
large  part  of  it  does  confer  benefit  is  unquestionable  — 
it  does  not  compensate  for  improvements  wrought  out 

witli   their  <>wn   minds   by   those  upon  whom   the  benefit    i> 
Conferred.      Social   Legislation  has   the   incurable   habit    of 

tending  towards  paternalism;  and  paternalism,  however 

wide  be  the  basis  of  consent  upon  which  it    is  erected,  i> 

the  subtlest  form  of  poison  to  the  democratic  state* 

It  may  mitigate,  but  it  does  not  solve,  the  essential 
problem:  which  is  to  interest  the  Largest  possible  number 
of  persons  in  the  study  of,  and  judgment  upon,  political 
(juestions.  A  far  wider  political  enterprise  is  needed  from 
the  mass  of  men  to  make  durable  the  gains  of  the  last 
fifty  years.  It  may  even  be  urged  that  only  in  this 
fashion  can  we  hope  to  make  possible  the  emergence  of 
that  practical  and  Speculative  Leadership  of  which  the 
world  has  need;  for  a  people  of  which  the  alternative  in- 
terests are  either  half-whimsical  contemplation  or  mere 
amusement   will  never  produce  a  great   civilization. 

3«  Cf.  Dicey  in  the   LOW  Quart*  rl y   /'<  .  1915,  00  "The  Growth 

of  Administrative   LOW." 

n  The  besfl  discussion  of  this  whole  sobjeef  Is  bj  I  Osheaj 

Let    Fonctionvaim. 

*»  Cf.  Mr.  Lloyd-George*!  renssikebk  sihnlifft#r*i  London  Timet, 

Nov.  M,  1913. 


M  ADMINISTRATIVE    AREAS 

It    is   possihle   that,   in    tlu>    regard,   we    ton   gn   itlv   de- 

preciafa    the  significance  of  political  mechanisms.     It   it, 

of  cniiFM',  tlTM  that    the  main  questions  of  democracy  arc 

what  may  In  tiniHil  moral  questions,  depending  far  more 
upon  thr  |"         ion  of  mind  and  character  than  upon 

anv   other   factor*,      Bui    mind   and    character   a  it   rvcrv- 

irhere  am  l<  m  without  the  full  opportunity  of  application* 
It  is  here  thai  the  mechanisms  of  modern  democracy  seem 
most   inadequate*     For  wo  have  not    sufficiently   related 

tin-  alias   they   traVCISC   to   the  occupations  of  the  avn\i 
man.      We    ha\e    generally    left     unconnected    the    life    he 

leads  frith  the  construction  of  those  rules  of  conduct  br 
which  that  life  is  governed.     We  are  Buffering*  in  fact, 

from    an    o\  |  r  o  ut  rali/.at  ion    which    results    from    placing 

too  great  an  emphasis  upon  the  geographical  factor  in 

\  i  rnment.     We  hare  collected  so  much  power  at  ■  single 

point  in  the  hodv  politic,  we  ha\e  SO  much  emphasized  the 
distribution  of  functions  in  terms  of  that  point,  that  the 
only  systems  of  government  of  which  we  can  conceive  if 
one  which  takes  its  orientation  from  that   direction.      Y- t 

it  is  :if  least  uncertain  whether  new  possibilities  do  not 

e\ist. 

n 

England  is  what   is  termed  a  unitary  state.      Tin    King 

in  Parliament  is  there  the  sole  and  final  source  of  existent 
powers.     Everv  species  of  local  authority  derives  those 

pow.  is    it    can    exercise   directly   or    indirectly    from    some 

rliamentary  enactment.  It  is  generally  admitted  thai 
the  result  of  this  system  has  been  to  cast  an  overwhelming 
burden  of  business  upon  the  House  of  Commons,  and 
schemes  for  the  relief  of  such  pressure  have  taken,  ever 

since  the  famous  "Radical   Programme''  of  1885,  the  form 


ADMINISTRATIS  !.     AIM   AS  r, 

Of  lOUie  iih-.-i  -  ■  1 1"«    of  d«  ■(•••ill  r.ili/.i  t  inn.  To   Mi'.  Chainh.r- 

lain's  enthusiastic  vision  wliai        iikiI  desirable    was  the 

institution  of  national  councils   for   the  constituent    parti 

of  the  United  Kingdom;  whereby  be  hoped  not  onlj  to 
confine  the  House  of  Conunom  to  functions  of  ■  general, 

and    not    a    local    nature,   hut,   also,    to    find    ■    Waj    out    of 

the  labyrinth  <>f  the  [riih  question.4*  More  frequently 
and  mainly  through  the  immense  financial  complications 
inch  federalism  would  involve,  what   has  been   regarded 

with  favor  is  the  con  ft  n  n«  <  of  far  wider  pOWCTS  UpOU 
the  local   aut  horit  i«  I, 

The  incoln  i,  nt  anarchy  of  the  period  before  the  Munic- 
ipal Reform  Act  led,  in  the  course  of  the  nineteenth 
century,  to  a  complete  and  necessary  reconstruction  of 
local  government.  Until  thai  time,  and  ever  since  tin- 
rigid  centralization  of  the  Tudor  period,  practically  no 
administrative  connection  had  existed  between  the  Local 

authorities  and  Whitehall.  Tin-  scandals  of  municipal 
corruption,  coupled  with  the  ohvious  limitations  of  govern- 
ment by  county  justices  confined  to  a  particular  class, 
led  the  more  rigid  reformers,  such  as  Chadwick,  to  attempt 
a  complete  administrative  centralization;  but  the  tradi- 
tional opinion  in  favor  of  some  active  and  <|iiaM  independ- 
ent local  powers  was  sufficient  to  prevent  the  adoption 
of  the  rigorous  bureaucratic  methods  which  prevail  so 
largely  upon  the  continent  of  Europe.  As  it  i^.  the 
course  of  development  has  led  to  the  emergence  of  s  type 
of  authority  at  once  different  from  the  centralized  rigor 
of  Prance,  on  the  one  hand,  and  the  loose  dispersion  of 

»•  The  Radical  Programme,  Ch.  9.     Another  iiet.mee  of  the  SSSM 

tendency  is  Henry  (\  Stevens,  Provincial  Self-government,  which 
I      «d  through    ever*]  edition!  in  the  ninetl 

*°  The  Radical  Programme,  p.  -H7   f. 


M  ADMINISTRATIVE    AREAS 

powen  in  tin-  I'nited  Static  on  tin-  other.  There  hat, 
\ « ■!■  v  happily,  been  no  Attempt,  as  in  Prance  and  Ger- 

niaiiv,  to  adopt  a  classification  which  distinguished  be- 
tween "national"  or  ^obligatory"  duties,  and  "local"  or 
"optional*1  duties;   for    it    has   hern   wisely    Seen    that    uhat 

Mr.  Webb  has  happily  termed  tin-  iviannv  of  categories 

does   not,  in  any   it  til  Sense,  tit    the  facts  it    ifl   intruded   to 


summarize.41 


What    has  be.  n  done   is,  in   the  first    plaee,  to  lay   down 
the  functions   it    is   the  business  of   the   local   authority    to 

fulfil  and,  as  a  later  and  growing  development,  to  assist 
and  stimulate  their  performance  either  by  s  grant  in  aid 
or  the  conference  of  an  assigned  revenue.     It  dots  not 

seem  that  the  latter  method,  the  invention  of  Lord  (ios- 

ehen,  has  any  other  advantage  than  the  simplification 
of  national  bookkeeping;41  but  the  former,  the  grant  in 
aid,  may  well  be  claimed  as  a  capital  discovery  in  the 
technique  of  administration.  John  Stuart  .Mill  long  ago 
insisted  on  the  necessarily  greater  width  of  knowledge 
and  experience  that  is  available  in  the  central  depositary 
of  government ;  and  it  is  the  unique  value  of  the  grant  in 
aid  that  it  enables  the  central  authority  to  oversee  per- 
formance without  that  detailed  interference  which  a  jcal- 
oua  localism  might  well  consider  excessive.  It  has  thus 
maintained,  at  hast  in  part,  the  virtues  of  a  decentralized 

administration,  without  Buffering  it  to  fall  into  the  vie 

of  negligent  parochialism.  It  makes  efficiency  in  certain 
directions  profitable,  and  thus  stimulates  at  least  a  mini- 
mum  of  exertion.      Wherever   the  local    authority   desires 

to  step  outside  the  actual  province  of  its  powers,  as  in 

«'   See  his  remarkable  article  in  the  Gluti   Kflrfcfl  RflrffWj  Vol.  Ill, 
No.  a 

I     (irirr.   National  <'//</    Loral   i'inance,  p.  95   f. 


ADMINISTRATIVE    AREAS  47 

the  case  of  the  gnat  Thirlmere  scheme  of  Manchester,  it 
nm>t   either  acquire  the  privilege  directly  from   Pari 
men!    or    indirectly    from    ■    department    delegated    by 
Parliament  to  perform  thai  offic*  . 

It  cannot,  on  the  whole,  l>.-  denied  thai  the  irorkingi  of 
this  scheme  have  justified  its  inception.  Unquestionablj, 
there  is  much  to  be  desired.  The  county  councils,  mainly 
for  reason.  of  distance,  bave  remained  like  the  old  Quarter 
&  —inns,  aristocratic  or,  at  least,  propertied  in  character 

and,  to  some  extent,  conservative  as  a  result,  in  outlook. 
The  parish  councils  of  Mr.  Ritchie's  famous  act,  from 
which  the  early  Fabians  hoped  so  much,43  have  been, 
indisputably,  a  failure.  They  have  been  too  rarely  insti- 
tuted and,  where  instituted,  financial  weakness  has  pre- 
\  tilted  them,  other  causes  apart,  from  doing  much  of 
an  effective  character.44  The  administration  of  the  poor 
law  has  been  recently  condemned  by  the  ablest  Royal 
Commission  since  that  which  reformed  it  nearly  ninety 
years  ago;  and  it  is  now  proposed  by  no  one  to  retain 
it  along  its  present  lines.4'  The  municipal  councils  have 
been,  as  was  naturally  to  be  expected,  by  far  the  most 
satisfactory  in  operation;  and  the  opportunities  that  lie 
open  to  those  who  will  work  this  fertile  field  the  single, 
but  classic,  instance  of  Mr.  Chamberlain  has  strikingly 
shown.  More  anonymous,  but  hardly  less  important, 
have  been  certain  of  the  municipal  enterprises,  partic- 
ularly the  tramway  systems,  of  a  few  cities  like  Man- 
chester and  Glasgow. 

Yet    the    fact    remains    that    over    English    life    certain 

«3   Fnhinn    Es.«n,i*,  p.    ISO. 

44    I.ouell.    Oc/Oi  rnm>  nf    <>f    Evihiwl,    II,    881. 

M  The  Ministry  of  fteCUmifCilOU  Willi  now  to  he  in  f.-ivor  of  its 
inmii  (li.itr   aliolit ion.     Cf.    the    recent    circular   of   the   department    on 

the  -nbject. 


48  ADMINISTRATIVE    AREAS 

shadowi  have  iii  ita  local  aspect  fallen.  It  is  not  merely 
that  the  tinea  of  central  authority  arc  drawn  too  uniform 
to  admit  the  emergence  of  the  needed  spirit  and  enter 
prise;  the  distribution  of  toyi  to  workhouse  childreni  for 
example)  need  notj  of  necessity]  be  regarded  as  u  heinous 
offense.4*  In  things  like  education,  public  health,  trans- 
portation, the  supply  <>f  hooks,  local  authorities  displ 
a  lack  of  creative  energy  which  is  not  merely  consequeni 
upon  the  degree  of  control  which  is  exercised  from  out- 
side; for  in  this,  as  in  parliamentary  business,  authority 

is  always  ultimately  in  its  acts  the  translation  of  a 
dominant  public  opinion.  They  earn  their  grants,  but 
they  do  little  more  than  earn  their  grants.  This  i>, 
perhaps  naturally,  even  more  true  of  the  rural  than  of 
the  urban  districts;  an  improvement  in  the  methods  of 
government  seems  always  to  depend  upon  the  presence  of 
large  populations.  When  Mr.  Graham  Wallas  discovers 
volumes  of  the  "Home  University  Library"  and  the  "Cam- 
bridge  Manuals"  in  his  village  shop,47  one  can  only  feel 
that  a  curve  of  their  distribution  would  suggest  that  he 
was  fortunate  in  bis  village. 

It  is  idle  to  suggest  that  this  is  due  to  the  substitution 
of  a  democratic  for  an  oligarchic  system.4"  It  is  true 
that  the  ablest  men  do  not  occupy  themselves  with  local 
life.  If  they  arc  politically-minded  they  try  to  drift 
towards  London ;  and  the  local  council  becomes,  with  the 
local     bench,    what     Mr.     Wells     has     happily     termed     a 

Knighthood    of    the    Underlings.     The   competition    for 

place  is  small  and  the  number  of  active  voters  compai 
unfavorably   with   the  proportion   in  parliamentary   elec- 

♦«  C.wvnn  and  Turk  well,  ZAfi  of  Dttfcfj  II,  p.  23. 

47    The   Grrnt   Snrutii,   p.   302. 

*«  Lowell,  Clovcrnmrnt   of  Enqlnvd,  II,  p.   190. 


ADMINISTRATIVE    AREAS  Ml 

tions.41  A  few  cities  will  be  fortunate  in  their  town- 
clerks     as     Nottingham     was     fortunate     in     Sir     Sanim  1 

Johnson.     Occasionally,  a  theory  of  political  method  will 

•  i  i 

persuade  a  unique  genius  1  i k* •  .Mr.  Sidney  Webb  to  fertilise 

the     London     County     Council.      Hut      no     one     who     ha-. 

attended  meetings  of  guardians  or  council  committees  can 
derive  much  enthusiasm  from  them.  In  the  rural  districts 
there  are  the  types  where  the  squire  prevails,  or  where  a 
vicarious  representative  pompously  vindicates  the  Angli- 
can inheritance  against  the  resented  intrusion  of  a 
chapel  going  Nonconformist ;  more   rarely,  there  is  the 

type   where  BOme   faded   memory  of  Joseph   Arch    has   Left 

a  leaven  of  finer  and  broader  aspiration.  In  the  towns, 
it  is  mostly  upon  the  education  committees  that  it  is  usual 
to  discover  a  really  intelligent  grasp  of  the  problems 
involved  —  a  grasp,  it  should  be  added,  which  is  usually 
due  to  the  presence  of  the  coopted  members.  That  the 
ideal  mayor  should  be  a  rich  peer,  is,  as  Mr.  Redlich  drily 
observes,50  a  sufficient  commentary  upon  that  institution. 
Yef  no  one  who  reads  the  monumental  history  of  aristo- 
cratic control  collected  by  Mr.  and  Mrs.  Webb  can  doubt 
the  improvement  in  the  quality  of  local  government  when 

its  popular  aspect   is  comparatively  estimated.      There  is 

more  width  of  outlook,  more  generosity,  a  vast  technical 
advance.     The  source  of  dissatisfaction  must   be  found 

in  other  directions. 

The  mood  of  the  people  is  significant  in  this  connection. 
Broadly,  of  course,  it  is  a  specialized  reflect  ion  of  the 
apathy  about  politics  in  general.     There  is  so  much  thai 

is   technical   in  local  affairs  that    it    is  difficult    for   interest 

to  be  aroused  except  where  one  is  actually  and  actively 

«»  Ibid,  153  f.  so  I.nrul  Government  in   England,   I,  }>.  -Ju.i. 


BO  ADlflNISTHATIVK     AULAS 

immersed  in  itl  rift  111  f ;  an  inadequate  pavement  will 
arouse  criticism  onl\  amongst  those  who  hm-  tin-  road. 
A  scandal  about  cont  ract  I,  of  course,  arouses  tin-  interest 
th.it     must     al\v.i\s    come    where    the    fierce    light    of    iin^rv 

publicity   ii  concentrated  upon  ■   particular  individual. 
But,  for  the  moil  part,  the  tendency  if  for  popular  atten 
tion  to  relate  itself  onlj   to  the  tingle  and  fundamental 
question  of  rates.     So  more  popular  election  cry  can 

be  found  than  the  promise  of  their  reduction.     Nothing 

—  as  witness  the  program!  of   ratepayers1  associations 

—  is  more  fiercely  resented  than  increased  municipal 
expenditure.  The  maxims  of  Mr.  Gladstone  upon  that 
local  government   he  never  fully  understood,  '   are  here 

still  paramount,  with  the  result  that  far  too  few  author- 
ities are  encouraged  to  the  experiment!  that  are  essential. 
Hie  spirit  that  led  Mr.  Lansbury  to  establish  the  great 

poor  law  school  at  Shenfield  is  the  exception  and  not  the 
rule;  and  it  has  been  fiercely  resented  at  wanton  extrava- 
gance or  a  dole  to  the  improvident.  All  this,  it  should  be 
added,  is  very  intelligible.      Hates  fall  not  upon  landlord 

hut  upon  the  occupier,  and  to  relieve  them  u  only  the 

prelude  to  an  increase  in  taxation.'"  The  average  rate- 
paver  is  in  any  case  hard  pressed  to  make  both  endi  meet 

on  his  income.  He  tends  to  see,  in  thing!  like  municipal 
housing,  and  school  medical  officers,  and  recreation  ten- 
ters, a  movement  towards  that  socialism  of  which  he 
still  stands  in  so  much  dread.  It  is  only  by  urgent  effort 
that  he  can  start  his  sons  at  his  own  level,  and  prevent 
his  daughter!  from  knowing  how  to  earn  their  own  living. 
To  him  such  expenditure,  for  which  he  pays,  is  like  giving 

n  Webb.  Qrmuii  in  Aid,  ]>.  9. 

II  Cannan,  EittOT%  of  Loemk  BefSJ  (2nd  ed.),  Ch.  8. 


ADMINISTRATIS  E    aim.  \s  ;>i 

freely  to  tin    poor  the  opportunity   to  outstrip  him  in 
the  rac<  . 
The  limitations  of  loch  an  outlook  are,  in  this  regard) 

most  urgently  manifest  in  things  of  tin-  mind.  Man- 
chester, for  example,  has  a  single  adequately  equipped 
library  for  a  population  <»1  over  tin.,  quart  n  <•!  a  nail- 
lion;  and  it--  dramatic  and  musical  pre  »  inim  me  ,u.  hoth 
of  tin  in  due  to  the  fortunate  accident  of  a  few  rich 
patrons.  Outside  tin-  technological  sciences,  for  which 
commercia]   needs  demand  a  somewhat    fuller  equipment 

than  elsewhere,  its  university  owes  i  t  -.  main  distinction, 
that  in  historical  scholarship,  not   in  any  >,  ris«    to  a  proper 

municipal  endowment,  hut  to  the  earnest  seal  of  two  dia 
tinguished  Bcholan  who  mighl  equally  well  have  been  in 
Leeds  or  London  or  Oxford,  for  the  municipal  encourage- 
ment  thev  have  received;  and  it   is  noteworthy  that   little 
or  no   provision  is  made  for  the  study  or  teaching  of 

government.      The  citizen  of  Manchester   may    noldy   hate 

the  citizen  of  Liverpool;  but  his  care  for  the  rates  mal 
him  spend  his  dislike  less  in  achievement  than  in  vitupers 
tion;  and,  est hetically,  anyone  who  walks  down  the  mean 
and  crowded  Btreets  of  what  is  so  singularly  termed  Angel 

Meadow,  or  examines  the  sordid  and  crowded   narrow  in  Ifl 

of  Cheetham,  will  realize  how  little  Sousing  Acts  interfere 

with  the  .sacred  rights  of  property;  and  his  Bense  of  this 

apathj   will    1»<-   sharpened    when   he   compares   it    with    the 

solid,  if  mahogany,  magnificence  of  districts  like  the  Pala- 
tine Road  and  its  environs. 

In  the  rural  places,  even  this  achievement  is  not  emu- 
lated. The  influence  of  the  church  and  the  land  is  still 
dominating  and  narrowing,  and  even  so  unexpected  an 

M  S.t  .-ill  this  w.ll  |»nt  in  Mr.  M.ist<nnan\  Condition  of  Kniluui 
in  the  chftpter  entitled  The  Suburbans." 


ADMINISTRATIVE    AREAS 

enthusiasm  as  that  of  Mr,  Fisher  <  • » 1 1 1  <  1  hardly  extend 
itself  to  the  rural  SChoolSi  The  DCWSpApen  ranlv  pene- 
trate   into    their    recesses;    and    volume!    <>n    the    domestic 

life  of  the  royal  family  leem  the  staple  Article,  apart  from 
fiction}  of  Library  consumption.  The  country,  indeed, 
becomes  mainly  Apparent  to  the  nation  at  large  when 
tome  sporadic  outbreak  <>!'  anthrai  i>  reported.  Even 
the  paternal  influence  of  the  squire  is  rapidly  ceasing, 
since  the  motor  car  made  London  accessible,  and,  a^ 
often  as  n«>t,  thai  hereditary  influence  is  being  supplanted 
1»\  the  financial  magnate  irho  regards  the  village  as  an 
accidental  appurtenance  to  the  estate  to  which  he  can 
retire  f<>r  the  week-end.  Men  like  Thomas  Hodgkin  will, 
doubtless,  still  believe  affectionately  in  the  duties  entailed 
by  property;*1  but  rural  statesmanship  is  either,  like 
his,  benevolently  paternal,  or  else  non-existent.  Yd  it 
is  nowhere  so  greatly  needed.56 

It  is,  to  some  extent,  accidental  that  this  absence  of 
creativeness  should  be  associated  with  a  unified  state.  It 
i>  doubtless  true  that  the  division  of  powers  which  is 
characteristic  of  federalism,  whatever  it  fails  to  do,  does 
create  ■    spirit  of  experiment.      It   is,  indeed,  worthy   of 

note  that  the  poverty  of  local  powers  should  be  mainly 

connected  with  unified  states  like  England  and  France 
and  Belgium,  where  too  little  attempt  has  been  made  to 
create  a  cooperative  sovereignty.  Certainly,  in  munic- 
ipal life,  the  historic  localism  of  Germany  has  marvel- 
ously  survived  the  depressing  effects  of  imperial  cen- 
tralization; and,  with  all  their  weakness,  the  municipal 
items  there  afford  more  outlet  for  an  able  mind  than 

1   rr.-iL'hton,  Life  of  Hodqkin.  217   B 
68  Se»-  all  this  finely  put  in  Mr.  F.  E.  Green's  stimulating  volume, 
Th»    A'cnki  nintj   nf   Kmilund, 


ADMINISTRATIVE    AREAS 

fa  tli-    <  i  i    in  Great    Britain.!     In  the  I  nited  States,  it 

i^    trtie,    the    quality    of    enterprise    ha>    lurii    far    inferior 

to  the  amount  undertaken;  but  the  career  ol  ■  man 
who  there  engages  In  the  politic!  of  itate  <n-  of  <i t y  offen 
more  solid  advantage!  in  the  possibilities  of  constructive 

effort    than   iii   any  country   in   the  world.      Hut,  after  all, 

the  fortunate  accidents  of  history  and  geography  are  at 
least  partially  responsible  for  this  difference*  Hie  oni- 
fied  governance  of  America  is  a  physical  and  economic 

impossibility;  and  the  roots  of  the  federal   tradition  were 

already  Laid  there. 

That  is  not  the  case  with  England;  and  though  it  Is 
not  necessary  to  accept  Mr.  Freeman's  dictum  G  that 
what  is  now  united  ought  not  again  to  suffer  division, 
it  is  possible  to  doubt  whether  England  has  the  institu- 
tional, economic,  or  territorial  basis,  upon  which  a  federal 
state    could    he    founded.      It    is    important     to    remember 

that  federalism  has  not,  in  general,  resulted  in  lessening 
the  pressure  of  business  upon  the  central  authority  ;  indeed 
in  America  exactly  the  Bame  complaints  of  overburdening 
as   in   England   are   made.51     Government    by   discussion 

18    there    even    more   a    euphemism    than    in    the    countries 

centrally  organized.  The  division  of  powers  has  eer- 
tainly  the  result  of  lessening  the  number  of  subjects  upon 
which  the  federal  government  must  concentrate  its  atten- 
tion; hut  the  difference  in  extent  of  purview  seems  more 

than  compensated  by  the  increase  of  intensity;  and  Eng- 
land   is   BO   much  an  economic  unity  that,  in   the  largest 

R«  Thouirh  t<>  say,  ns  Mr.  Webb  MVfl   (Grant i  in  .1i>i.  p.  0),  that  it 

i.  the  "worst  government  <>f  sav  country  claiming  to  he  civilized" 
i     bnplc  nonsen  a 

M    Fli.it'irv   <>f    f,  if,  ml   Q <>vrrvm<  Ml .   p.    70. 

b»  Bryoe,  Amtrio&n  Oommouwtmlik,  Ch.  18. 


M  AinushTKA  rivi;    AREAS 

subjects,  it  i^  less  ;i  federal  than  a  (Itit  nt  iali/(  d  structure 
to  which  at  tint  ion  OUght  to  f>»  given.  Clearly,  for 
instance,  a  separate  educational  policy  i>,  an  agreed 
inininmin  apart,   possible   and   <\<  u   desirable    for   tin-   con 

stituenl   parti  <»f  tin-  United  Kingdom;  but   i    leparate 

policy  in  taxation  would  raise  10  \«li«ui'nt  an  opposit  ion, 
and  en  at.-  Mich  vast  difficult  iefl  in  ad  j  usl  DM  fit,  as  to 
make  it  more  than  douhtfnl  whctln  r  it  would  be  worth  the 
00ft«       In  questions  that  arc  obviously  local   in  nature  the 

advantage,  fur  example,  of  leaving  the  Welsh  church  to 

Wale*    and    the    Scottish    crofters    to    Scotland    and     the 

Congested   Districts  to  a  Chief  Secretary   permanently 

located  in  Dublin,  is  unquestionable.     Hut  all  this  would 

still     leave    untouched     the     vital     ([notions     within     each 

group.     Even  supposing  that  it  relieved  the  burden  upon 

the  House  of  Commons  it  would  do  little  more  than  create 

an  intermediate  set  of  institutions  which  would  in  nowise 

lessen  the  present  administrative  problems,  on  the  one 
hand,  or  associate  with  itself  any  new  sources  of  public 
opinion,  upon  the  other.  It  is  within  the  local  group 
that  the  real  stimulus  to  action  must  come. 

What  clearly  IS  needed,  is  something  that  affords  the 
advantages  of  a  territorial  federal  system  without  the 
destruction  of  parliamentary  sovereignty,  at  any  rate  in 
the  si  rise  of  final  control.  It  is  worth  while  here  to 
insist  that  there  is  really  no  rigid  lino  between  federal 
and  unified  governments  ;  the  only  real  difference,  as  S<  ell  v 

long  ago  pointed  out,  '  is  in  the  degree  of  powi  r  retained 
by,  or  conferred  upon,  the  localities.     The  United  Stat.  > 

may,   in   theory,  ascribe  definite   functions   to   the   federal 

government,  and  the  indefinite  residue  of  powers  to  the 
states;  but  no  one  who  watches   the  interpretation  of 

B9  Introduction  to  Political  Scuncr,  p.  05. 


ADMINISTRATIVE    AREAS 

the  Constitution  by  the  Supreme  Court  will  question  the 
impossibility  of  final  classification*     The  flexibility  of  a 

federal   system   in    this   aspect    will    be  obvious    to   anyone 

irho  compares  HaekeU  \.  Noble  St<iit-  Hank'  frith 
McCray   \.   United  8tevtee*       Federalism,   undoubtedly, 

results  from  tin-  COaleSOl  DCe  of  what   w<  re  hefore  separate 

groups,  and  it  is  thus  distinct  from  that  decentralization 
which  makes  a  partial  separateness  where,  before,  there 
iras  complete  unity.  5Te1  either  system  i^,  in  reality,  no 
more  than  an  attempt  at  finding  the  mosi  convenient 
areas  of  administration.  Federalism,  as  Prof' —mi-  l)i« 
has  insisted,1  n  lults  in  the  creation  of  ■  national  state, 
and,  p/hatever  the  original  powers,  it  will  nltimtaely 
become  true,  as  Mr.  Justice  Holmes  has  pointed  out,'' 
"that  the  national  welfare,  as  understood  by  Congress, 
may  require  a  different  attitude  within  its  sphere  from 
that  of  some  self-keeping  state."  Certainly  the  result 
of  that  wider  need  is  a  degree  of  local  subordination  which 
will  change  as  the  needs  of  the  nation  change*     Yet   it 

is  the  singular  merit  of  a  federal  system  that  the  creation 
of    a    national    allegiance    does    not    destroy    the    special 

interest  of  the  citizen  in  the  province  to  which  he  belongs. 
The  Bavarian  does  not  the  less  believe  in  Munich  because 
of  the  predominance  of   Berlin;  nor  is  it   here  without 

significance    that    the    ablest    di>ciple    of    Calhoun    wa^    a 

Bavarian    professor.*4     Eager   citizens   of   Chicago   will 

explain  its  manifest  superiority  to  Boston  or  New  York  ; 
and  the  claims  of  .size  are  resisted  by  the  patriotism  which 

«o  219,   U.  S„   l()i. 
«i  195,  l'.  S  .  27. 

02    tam   Of   tht    '  'ntl.it  it  lit  in,,    (Mil   «•(!.),   p.    81 

«3  Bee  hi,  dissent  in  the  Child  Lsbot  Case,  r.  s.  :.  Degeahart, 
decided  in  1911  iv 
e«  Max  SeydeL 


ADMINISTRATIVE    AREAS 

tin  tiny  citiea  of  the  Middle  WVsl  cum  call  into  being. 
It  i^  that  intern*]  diversity  of  allegiance  which  mal 
possible  the  creation  <>f  active  governmental  oenteri  dis- 
tinct from  Washington*  There  ii  no  eridence  to  prove, 
the  classic  authority  suggests,"5  thai  federal  govern- 
ment is  either  freak  <>r  conservative*  The  weakness  if  the 
purely  theoretical  fad  thai  a  division  of  powers  opens 
up  legal  contingencies  <>f  conflict  which  arc  avoided  in  a 
unified  state;  though  it  should  be  noted  thai    England 

also  has  had   its  civil  war.       And  where  powers  are   needed 

recent  experience  has  vividly  shown  thai  they  are  present  ; 

d>v    no    public    official    in    the    world    has    ever    disposed    of 

Mich  authority  as  the  President  of  the  United  States  in 

1917.*        N<»r,  moreover,  has  the  unified  state  escaped   the 

possibility  of  such  danger.     Experience'     seems  to  sug- 

t  that  its  avoidance  is  a  matter  not  of  law  but  of 
policy.  The  actual  study  of  state  and  municipal  effort 
in  America,  moreover,  traverses  with  completeness  the 
charge  of  conservatism;  rather  is  the  observer  confronted 
with  a  plethora  of  experiment  through  which  he  is  only 
able  with  difficulty  to  thread  his  way.  It  is  not  asserted 
that  the  administrative  areas  or  the  division  of  powers  in 
the  United  States  are  ideal.  On  the  contrary,  it  is  all  too 
evident  that  they  stand  in  grave  need  of  change.06  That 
only  means,  however,  that  the  frame  of  government 
adapted  to  the  ideas  of  1787  is  inadequate  a  century  and 
a  half  later;  which,  after  all,  is  no  cause  for  complaint 
in  a  period  which  has  seen  greater  material  changes  than 

«5   Law  of  the  Constitution    (8th.  ed.),  pp.   lf>7,   169. 

««  <  f.  especially  the  power  to  raise  an  army  of  unlimited  size. 

«7  (f.  my  PtobUm  of  Snr,  n  i<int  ij,  /xmsim. 

«*  Cf.  Mr.  Crolv'i  comment,  "Tie  Failure  of  the  States,-  in  Tkt 
\       RtpubHe,  v..].  IX,  p.  no. 


ADMINISTRATIVE     AHKAS 

anv  previous  age.  It  doci  not  1 1 1  \ alidai .  tin  underlying 
Mtumpi  ions  of  t«  deralism. 

Lord  Brycc  lias  pointed  out  *  thai  no  Argument  rela- 
tive to  local  government  irhlch  can  be  urged  in  favor 
of  federalism  does  not  also  hold  for  ■  decentralized  lyi 
triii.  Either  irill,  if  adequate,  provide  ■  means  <>f  experi- 
ment which  is  dillicult,  if  not  impossible,  if  applied  '<>  the 
area  <»f  ■  irhole  country.  Either  relieves  tin-  pressure 
of  national  business  by  the  entrustmenl  of  its  final  chai 
irhere  it   is  inertly  local  in  nature,  to  local  authorities. 

lather    provides    a    substantial    check,    in    these    years    a 

greatly  needed  benefit,  against  the  fears  of  bureaucracy. 

And,  within  England,  fiscal  reasons  seem  to  make  de- 
centralization the  preferable  method.     vVhitechapel,  for 

instance,    has    a    proportionately    leSfl    ratable    value    than 

Hampstead,  though  its  governmental  needs  are  greater. 

Inevitably,  therefore,  improvements  in  Whitechapel  must 
lean  more  upon  central  assistance  than  improvements  in 
Hampstead.  So  long  as  the  system  of  grants  in-aid  is 
continued,  and  its  cessation  would  be  matter  for  deep 
regret,  every  local  authority  must  rely  upon  the  national 
exchequer  for  subventions.  Anything  in  the  nature  of 
fiscal  decentralization  would  at  once  deeply   injure  the 

prestige  of  the  House  of  Commons  —  a  more  .serious  mat 
ter    in    its    remoter    ramifications    than    is    lightly    to    be 

supposed  —  and  raise  every  problem  the  central  depart- 
ments   now    confront    in    several    places    instead    of    one. 
Clearly,    again,    that    subvention    ought    to    be    made    (!«• 
p«  ndent  upon  an  adequate  fulfilment  of  functions.     Thai 

ought    to    involve   in    the    central    power  —  whether    tin 
are    intermediate    authorities    or    no  —  the    retention    of 
some    inspective    control.      So    long    as    local    government 
•o  American  Commonwealth,   I,  Ch.  Ji». 


58  ADBflNISTRATn  E     IRE  \s 

is  at  least  partially  conducted  <>ul  of  national  fundi  there 
in   n«>   room  for  any  final  separate  in  >s. 

It    i>   not    iii»  ant    fun-   to  ass«rt    t  li.it    Hie  centra]   control 

of  localities  lii-  been  strikingly  successful.  On  Hi'-  con- 
trary! n<>  one  would  (It  1 1 \  the  nead  <>f  widespread  reformi 
in  this  direction.     It  is  cleart  for  example,  thai  the  Local 

Government    Hoard,   in   its  audit    of  local   act  mints,  OUghl 

to  be  compelled  to  employ  professional  auditors."  Nor 
is  it  doubtful  that  much  of  the  m  called  inspection  i^  a 
perfunctory  examination  to  which  little  value  in  reality 
attache*.  Tbe  right  of  entry  u  doubtless  a  reserve 
power  that  does  not  fail  of  effect  in  dealing  with  ab- 
normally backward  Localities;  but  it  seems  to  bave  been 

far  leal  Useful  win  re  the  hare  minimum  standard  bas  been 

attained.      .Much,   too,   remains   to   be  done   in   the   way   of 

.tral    reports    on    local    performance.      That    form    of 

inquiry  could  be  used  with  far  more  resull  than  it  in  fact 
u  by  the  sheer  influence  of  constant   publicity,  a  fact 

which    is    borne    out    by    the    interest     which    BCCmi    to    DC 

locally  taken  in  the  inspector's  inquiries  into  local 
schemes.  But,  when  the  last  criticism  has  been  made, 
it  is  impossible  to  examine  the  relation  between  central 

and  local  authorities  without  the  conviction  that  it  is 
instrumental  in  the  production  of  an  efficiency  that  might 

otherwise  be  absent.     It  lacks  the  rigor  of  the  French 

deconct -ntration,  which  seems  to  act  as  a  governmental 
anaesthesia  in  local  affairs;  but  it"  has  enough  flexibility 

of  pri  K  nee  to  make  if  a  weapon  of  real  value. 

The  real  need  is  for  a  far  greater  performance  of  duties 
by  local  authorities  than  at   present   exists;  nor  are  rigni 

70  I.owfll,  Cuv,  riimmt   of   En<ihm<1,  TI,  C\\.    IS, 

n  i hi,!,  p,  a 

7Jo  Cunnun,  History  of  Local  Halts  (2nd  ed.),  p.   1-. 


ADMINISTRATIS  I      \i;i   \s  09 

granting  thai  the  need  <>f  inch  performance  i-  properl? 
Appreciated.  Mr.  Herbert  Fisher,  for  example,  has  em- 
phasised the  desire  of  the  Hoard  of  Education  that  Local 

authorities    should    go    beyond    the    minimum    of    central 

compulsion*91     That  desire,  indeed)  itrikes  the  real  b 

note  of   what    is   In  -re   Deeded.      Local   authorities   an    less 

in  need  of  actual  new  powers  than  of  the  requirement 

from  them  of  ■  far  higher  standard  of  minimum  attain- 
ment by  the  central  authority,  In  health  and  education, 
particularly,  it  is  in  the  power  of  central  authorities  to 

lay  down  a   basifl  of  expenditure  the  attainment   of  which 

should  be  the  basis  <>f  any  grant-in-aid**1     Achievement 

could   easily    be   stimulated    by    a    higher    .scale   of   grant- 

increases  proportionately  .'is  the  local  expenditure  paa 
beyond  that  required  minimum.     The  system  of  assigned 

revenues  ought  forthwith  to  be  abolished.  It  acts  at 
present  simply  as  the  safeguard  of  inertia.  A  check 
should  be  placed  upon  all  innovation  where,  in  the  con- 
sidered opinion  of  the  central  inspectorate,  the  required 
services  are  not  satisfactorily  performed,  and  it  is  obvious 
that  such  a  power  would  have  the  advantage  of  publicly 
ventilating  the  grievances  the  central  authority  is  pre- 
pared to  formulate.      Much  too,  could  be  done  by  placing 

far  greater  restraints  than  at  present  upon  the  promotion 

of  private  bills.  The  procedure  is.  in  any  case,  unduly 
expensive.  Tt  is  rarely  resorted  to  except  where  it  is  felt 
that    the    central    authority    would    not    be    prepared    to 

endorse  the  local  scheme.     Procedure  by  provisional  order 

has    proved    itself    in    the    working;7'    and    a     safeguard 

could  be  had  against  the  danger  of  officialism  by  pro- 

72  Educational   8pe*ck§9,   p.   35. 
II   Cf.    Wrl.l..   <!  rants   in    Aid,   p.    IOC. 
4  Cf.  Rcdlieh,  I,  L'37  f. 


80  LDMNISTRATTVE    AREAS 

riding  for  an  endorsement    or   rejection  of   t!i<    central 

authority's  onlrr  by   the  local  electorate.     Bui    mo  one 
who  has  watched  the  private  bill  system  in  its  operation 

,u    avoid    being   convinced    of    its    wastefulness    and   dilii- 

torineai  on  the  one  hand,  and  the  undue  consumption  of 
national  time  thai  it  entaila  on  the  other.  It  [a  little 
leaa  than  pathetic  to  sex  the  House  of  Commons  turn 
from  the  discussion  of  the  largest  Issues  to  the  problem 
of  the  (iravcscnd  <ms  works  or  the  tramways  of  Cam 
berwell.1  In  another  direction  it  may  be  useful  to  point 
out  thai  no  one  can  really  judge  the  adequacy  of  local 
government  until  some  attempi  is  made  at  equalizing 
the  preseni  lystem  of  valuation  and  providing  for  re- 
assessment  ai  more  frequeni  intervals.7'  The  whole  aub- 
jeci  ifl  ai  preseni  in  bo  complete  ■  chaos  thai  it  ia  difficult 

without  a  complex  examination,  which  the  local  authority 
does    not,    and    the    central    authority    baa    no    reason    to, 

undertake,  to  tell  whether  the  amount  of  money   raised 

in    any   area    at    all    equitably    representfl    the   contribution 

it  should  be  making  to  the  performance  of  it>  function-. 

It  is  obvious  in  any  such  perspective  thai  certain  and 
lying  assumption*  have  been  made.  Any  attempi  at  a 
higher  standard  of  local  gov*  rnment  will  demand  a  higher 
expenditure  and  ■  more  enlightened  public  opinion. 
Certainly  it  ia  the  former  of  these  thai  is  the  lesa  difficult 
problem.  We  have  realized  in  the  last  four  years  how- 
many  are  the  sources  of  wealth,  ai  leasi  in  pari  derived 
from  the  mere  fad  of  community  thai  ire  have  left 
untouched.  Much  can  here  be  effected  irhen  are  cease 
to  bestow  upon  the  landed  interest  thai  tenderness  by 
which   Sir   Robert    Peel   Boughi    to  converi    them   to  an 

f*  Low,  Qootrnanet  of  England,  p,  292. 
t«  Webb,  Grantt  in  Ai>l,  p.  110. 


ADMINISTRATIVE    AREAS  61 

Acceptance  of  the  last   ami  greatest   <>i   bii  un<  ed 

revolutions*       Even  more  can  b«  done  when  tin  <mpl  . 
placed  upon  local  taxation  by  *li<  influence  of  Sir  M 
Lopee  is  removed.1      \\  <   bave  to  Approach  the  problem 
of  rating  more  in  the  Bpiril    in  which  w<    approach  the 

problem    <»t    taxation.       \\Y    have    jn>t     to    deride    less    tliat 

bo  much  ii  to  be  railed  than  thai  so  much  is  needed. 
(  i  itainlv  in  the  matter  of  housing  ire  do  far  too  little  to 
make  plain  to  the  owner  of  slum  property  the  fact  thai 
our  dissatisfaction  must  have  financial  consequence.  The 
fundamental  principle  of  taxation,  thai  cosl  should  be 
proportionate  to  the  benefit  received  and  fixed  upon  the 
recipient  La  too  Little  used.1  There  would,  moreover,  be 
real  benefit  in  allowing  to  local  authorities,  the  basic 
rates  apart,  a  larger  varietv  of  choice  in  the  matter  of 

taxation  for  local   purposes.      The  taxation,  for  example, 

of  amusements  is  a  source  of  income  to  which  the  locality 
could  refer  with  advantage;  not  all  local  authorities  are 
as  fortunate  as  Doncaster,  bul  anyone  who  has  stood 
out sid. •  the  great  football  grounds  of  Manchester  must 
have  felt  that  the  crowds  are  a  heaven-senl  boon  to  the 

theorist    in   search   of  an   unfelt   source  of    revenue. 

Yet   the  greater  problem  of  an  adequate  opinion   re 

mains;  and   it    is   purely   idle  to  denv   its  complexity.      The 

very  fact  that  the  possibilities  of  the  Local  Government 

Acts  have  not  been   used   is   testimony   to   the  deeps   it 

touches.      Legislation    may    help    to   make    public   opinion, 

hut   it   does   not   seem  able  to  command   it.     Something 

of   tliis,   doubtless,    is   clue   to   the   habit    of   looking  timidU 
77  Sec  his  jrrt'Mt  ipeed)  in  Hmn$mrd,  Brd  Series,  Vol.  LXXXIII, 

Junuarv    _'T.    1840. 

7"   Cf.  drier,    Xttti'innl  and    Local   /'inane*,   j'p     M   f. 

79  ("f.   ( '.irin.m.  .<i>.   rft.,   pp,   .'{  r>. 

»w  l  1.  (  Iiij.iiiui.   Local  Government  and  Stat,    .lid,  pp.    M   I 


89  ADMINISTRATIVE    AREAS 

to  the  centra]  authority,     More  mav  be  traced  to  a  sh 
ignorance  of  the  power  and  influence  thai  a  strong  local 
government  can  exert.     Bui  much  of  it  ii  due  i<>  deeper 
and  more  urgent  causes. 

in 

The  problem  of  local  government  in  thii  aspect  ii  only 
in  smaller  perspective  the  problem  of  the  modern  state. 
It  raises  exactly  the  same  issues  a^  arc  raised  by  tin' 
genera]  question  of  the  modern  representative  system. 
The  mere  announcement  of  a  plentitude  of  power  in  any 
authority  will  Bolve  nothing;  the  essential  business  is 
to  get  thai  power  to  work.  \\Y  are,  in  fact,  beyond 
the  sphere  of  law.  We  are  dealing  not  with  the  con- 
ference of  rights,  but  with  their  realization,  which  is 
a  verv  different  matter.  It  is,  of  course,  important  to 
consider  the  purpose  by  which  such  power  is  informed. 
But  that  purpose  can  never  be,  except  for  Law,  s  mere 
matter  of  declaration;*1  the  Supreme  Court  of  the  United 
States  may  well  declare  a  Statute  constitutional  which 
announces  civil  war.  Purpose,  in  fact,  must  be  dis- 
covered in  pragmatic  fashion,  from  the  actual  process*  I 
in  their  joint  operation.  It  is  today  a  commonplace 
that    the    real    source   of   authority    in    any    state    is    with 

the  holders  of  economic  power.     The  will  that  i*>  effective 

is  their  will ;  the  commands  that  are  obeyed  are  their  com- 
mands.     Nor    is    this    less    true   of    local    than    of    central 

government.     The  city  council  of   Manchester,  for  ex- 
ample, will,  on  the  whole,  represent  the  norma]  purpose 
of  a  group  of  middle-class  business  men;  their  decisions 

will   be  imbued   with   thai    "intuition  more  subtle  than   any 

articulate  major  premise,"  which,  as   Mr.  Justice   Holmes 

si  Cf,  rny  Authority  in  tin    Mudtrn  Stat,.  Cti.   1. 


ADMINISTRATIVE    AREAS  68 

has  observed,  ii  the  true  origin  of  tin  convictionj  ex- 
pressed by  the  Supreme  Court  of  the  United  Stat  . 
There  if  herein  no  suggestion  of  sinister  motive*  It  i> 
no  more  than  the  simple  assertion  thai  ire  cannot  escape 
our  environment.  Those  irho  hold  power  \ull  inevitable 
feel  thai  the  definition  of  good  is  the  maintenance,  in 
some  fashion,  of  the  .status  quo;  exactly  as  the  Land- 
owners could  find  economic  ruin  in  the  repeal  of  the  corn 
laws  and  the  manufact urers  commercial  disaster  in  the 

factory  acts.  It  is  a  general  rule  that,  wc  identify  our 
private  good  with  the  common  good  and  write  the  result 
out  large  in  the  election  returns/3 

Legislation,  then,  reflects  the  minds  that  make  it, 
whether  its  makers  be  members  of  parliament  or  of  the 
bench  or  the  civil  service;  and  it  is  only  human  that 
this  should  be  so.  Once  it  is  perceived,  what  becomes 
of  importance  in  the  processes  of  politics  is  the  charac- 
ter of  those  minds  if  that  legislation  is  in  any  broad  sense 
to  represent  general  needs  and  general  desires.  The 
constituency  from  which  its  makers  are  drawn  must  cast 
its  limits  far;  hut  the  makers  themselves  must  be  not 
less  representative  in  character.  Here,  surely,  is  a 
source  of  many  of  the  difficulties  by  which  modern  gov- 
ernment is  faced.  In  England,  at  least,  we  have  avoided 
that  bare-faced  travesty  of  the  representative  system 
that  is  embodied  in  the  Prussian  franchise;  but  property, 

in   more   subtle   and    indirect,   fashion,   still    securely    finds 

the   emphasis    it   desires.     The   business   of   government 

has,  for  the  most  part,  been  confided  to  the  middle  class; 
and   the   results   have  largely  reflected   the  aptitudes   and 

purposes  of  that   class,     in  local   government,   for  ex- 

*2  108,  r.  s.,  46,  :<;. 

83  cf.  Wallas,  Emmtm  Nitmrt  in  Politic*,  p.  08  f. 


64  ADMINISTRATIVE    AREAS 

ample,  wi  have  ■  inse  Insistence  <>n  adequate    sown 
terns,  i  proper  rapply  of  good  drinking  wain-,  reason 
abl<    secondary  education  for  tli<>-^'  who  can,  in  ■  aider 
lense   than   >imj)l«    fees,  afford   it,   technicaJ    instruction 
that  the  1 1 1 1 < 1 1 1 1 « -  ranks  of  the  industrial  hierarchy  may  !><■ 
adequately   filled,*4   proper  lighting  lystems    -  th- 
the  characteristics   1>\    which   it    has  been  distinguished. 
They  all  of  them  represent  common  needs;  and  the  local 
government  has  been  successful  in  securing  those  com- 
mon needs  exactly  as  parliamentary  government  has  been 
Buccessful  in  securing  the  common  freedoms.     A  sews 
service  can   hardly   be  confined   to  a  dingle  class,  any 

more  than  a  modern  university  can  be  (outside  of 
Ireland)    confined    to    a    single    faith;    and    the    flavor    of 

generality  thai  is  Implied  in  such  service  the  present  sys- 
tem has  been  able  to  secure. 

Hut  it  has  proved  inadequate  exactly  at  the  point 
where  the  Larger  system  has  proved  inadequate.  Once, 
that  is  to  say,  we  pass  the  frontier  of  middle-class 
oeeds,  pre  enter  the  debatable  land.  English  local  and 
English  parliamentary  government  has  proved  a  satis- 
factory   tiling    for    the   man    whose    income    is    secure    and 

isonably   comfortable;   it   has   accomplished   little   for 

the  ranks  below  him.  It  was  the  perception  of  this 
truth  in  national  politics  which  led,  after  1906,  to  the 
revival  of  the  idea  of  industrial  democracy  as  the  para- 
mount is^ne;  labor  in  politics  had  discovered  to  how 
large  an  extent  theories  of  government  reflect  prevailing 
economic  systems.  The  local  government  of  England 
is  a  government  for  ratepayers,  and  that  largely,  under 
the  present   system,  must   mean  a  government   according 

TIi..ii;|,   i*    ihoold   in   honesty   be   sdded   t li;« t    thus   far  most  of 
our  technical  schools  ha.  n  half-starred 


ADMINISTRATIVE    AREAS  65 

to  the  ideaa  of  those  irho  feel  the  burden  <>f  the  rati 
Bui  it  it  exactly  the  needs  of  the  working-class  irhicfa  Lie 

outside  the  realm  of  subjects  to  which  the  will  of  the 
rate-payer  can  !>«'  fruitfully  directed.  Immense  hous- 
ing extension,  ■  Large  development  of  the  public  Library 
system,  Bchemes  of  education  of  which  even  thai  of  Mr. 

Fisher  is  hut  a  faint  beginning,  do  not  interest  those  who 
are  alreadj  satisfactorily  provided  for  in  these  regards. 
The  result  is  that  the  workers'  interest,  pale  enough,  in 
any  case,  in  the  details  of  national  government,  is  but  the 

shadow    of   a    shadow    in    local    concern-. 

It  is  doubtless  a  good  rhetorical  answer  to  urge  that 
the  Larger  part   of  the  working  class  has  the  franchise 

and  that  if  it  docs  not  choose  to  exeri  its  power  it  musi 
take  the  consequence..  But  that  is  to  mistake  the  super- 
ficial   appearance    of    a    political    system    for    its    inner 

reality;  it  is  no  more  a  real  expression  of  the  "general" 

will  of  the  state  than  the  election  of  Tweed  to  a  state 
Senatorship  of  New  York  expressed  contentment  with 
the  vices  of  Tammany.8;  The  King  of  England  does  not 
rule  in  practice  because  he  rules  in  theory.  England 
has  developed  a  system  of  governmental  institutions 
which  provide  an  admirable  opportunity  for  the  workings 
of  democracy;  but  it  is  at  hast  equally  clear  that  the 
institutions  only  partially  work.  Surely  the  real  source 
of  this  disharmony  is  to  be  found  in  the  way  in  which 
any  political  system  must    necessarily  reflect   its  economic 

environment.     The  local  institutions  of  England,  for  ei 
ample,  do  not  reflect  the  mind  or  desires  of  the  working- 
class   because   they  are   in   substance  adjusted   to  a   situa- 
tion  which,  economically,  at    any   rate,  is   far  from  demo- 
si  ci    Bryee,  Am$rioa*  CommowBialtk  (ed  of  1910),  II.  p. 
for  Tweed  episod 


00  ADMINISTRATIVE    AREAS 

tr.it ir.  Tin  v  arc  representative  in  theory  hut  not  in 
practio  The  problem  Hun  becomes  the  permeation  of 
them  with  the  ideas  of  the  working  cla>».  Nfoi  ii  that 
a  ihnple  matter.     It  does  not  merely  imply  the  running 

of     working-class     candidates     at      local     elections.      The 

question  <>r  expense  apart*1  there  is  not  sufficient  likeli- 
hood of   their  getting  elected   to   make   the  experiment 

worth    while    on    any    large    Male.      It    is    not    a    Mitfieient 

answer  thai    it    they  cannot   get   elected   the  Btate  does 

not   want    them.      We  know  too  much  and   too  little  about 

the  problems  connected  with  the  group  will  to  make  war- 
rantable   Mich   t\r   Cathedra    pronouncement-.      The    <pi. 
tion     is     whether     things     like     Whitechapel     and     Angel 

Meadow  are  to  remain.    They  will  remain  so  long  as  the 

poor  endure  them;  and  the  poor  will  endure  them  until 
their  economic  power  is  so  organized  as  to  secure  polit- 
ical expression.  It  was  that  kind  of  public  opinion 
which   produced  the  Trade   Union  Act  of  1875-6;  which 

secured  the  statutory  reversal  of  the  Taff-Vale  decision; 

which  cut  at  the  root  of  the  fatal  clause  in  the  House 
of  Lords  judgment  in  the  Osborne  case.87  The  problems 
of  labor  are,  of  course,  so  vast,  that  it  is  in  general 
difficult  to  do  more  than  focus  its  attention  on  national 
questions.     But  more  than  that  is  needed. 

It    is    in    some   such    fashion    that    we   are   driven    back 

to  that  decentralization  which,  as  has  been  Buggestedi 
is  in  reality  a  method  of  securing  the  results  of  federal- 
ism  without   the    juristic  basis  upon  which   the  latter,  as 

8"  A  useful  note  upon  this  will  he  found  in  a  letter  of  Mr.  Sidney 

Webb  in  Tkt  Nem  lUpnbUe  for  .tune  ■_'!»,  i«»i8. 

Tin  re  It  room  for  much  {peculation  m  t<>  the  validity  <»f  purely 
political  action  in  the  contrast   between  the  complete  victory  of  a 

small  patty  in  the  Taff-Vale  Caae,  and  the  partial  defeat  of  a  pro- 
portionately  more  numerous  party   in  the  (>  bOIDC  d.  <.  i   ion. 


ADMINISTRATIVE    AREAS  C7 

classically    c<>u<<i\ »  <L    rests.       Here,    it     If    prohahlr,    our 

thinking  has  been  conceived  in  term*  too  narrowly  ipatiaJ 
in  character,  What  ire  have  mostly  done  ii  to  think  of 
the  average  factor  in  the  formation  of  opinion  as  a 
•ingle  individual  equipped  t<>  understand  the  arguments 
on  either  side;  with  the  corollary  belief  thai  one  rote 
is  in  the  process  the  moral  equivalent   and  influence  of 

another.      That     is,    of    course,    ahsiirdlv    untrue.       Much 

opinion  there  undoubtedly  is;  man  is  not  less  a  solitarj 
than  a  social  creature.  But,  for  the  most  part,  it  is 
as  a  member  of  a  special  fellowship  that  the  average  man 
is  accustomed  both  to  think  and  act.  11<  i^,  maybe,  a 
citizen  of  Manchester;  but  his  desire,  say  in  1908,  to 
assist  bis  constituency  to  be  represented  by  a  cabinet 
minister  in  the  person  of  Mr.  Winston  Churchill  is 
checked,  as  a  churchman,  by  the  memory  of  Mr.  BirrelPs 
Education  Bill,  and  as  a  holder  of  brewery  shares,  by 
a  dim  feeling  that  Mr.  Asquith'fl  Licensing  proposals  have 
been  condemned  by  the  proper  authorities  who  protect 

those  widows  and  orphans  who,  in  England,  so  curiously 
limit  their  investments  to  brewery  shares.     The  average 
elector,   in  fact,   is   instinct    with   that   spirit   of  the   herd 
which  he  cannot  escape  by  simple  virtue  of  his  humanity/ 
All  such   relationships  create  what,  for  want  of  a  better 

word,  we  call  a  personality.     That  does  not  necessarily 

imply   that  a  new  physical  person  has  come  into  being." 

It    simply    means    that    we    encounter    a    unified    activity 

which  comes  from  the  coalescence  of  the  thoughts  and 

wills    of    divers    men.      That     personality,    as    so    defined, 
98  Though   I   do  n«»t    accept    all   its   implications,   I    think    that    Mr. 

Bradley*!  famous  essay,  "My  station  end  its  Duties,*1  in  his  Ethical 

8tudU»t  still  best   expresses  this  truth  even  for  political  purposes. 

k'-'  The  hest  jrencral  view  of  this  controversy  is  in  the  lirst  volume 
of  I..  Michoud's  Theori\    d<    la  Perxunnalitt    Mural?. 


<;s  ADMINISTRATIVE    ARE  \> 

gives  rise  to  interests;  and,  in  the  modern  state,  it  is 
largely  l>v  the  int«i|>l.iv  of  interests  thai  policj  i>  deter 

mined. 

\<>    01M    i':iii    uateh    flu-    evolution    of     politics    without 

seeing  thai  this  is  the  ca*  .     Burke  has  made  the  necessity 

ot  parties  politically  axiomatic;  hut  we  have  t<>  admit 
that   only  a   small   pari    of  118   is  exhausted   h\    that    conn. 

tion.  English  education,  for  instance,  has  been  largelj 
determined  l>\  a  church  "interest,*1  Agricultural  policj 
has  at  everj  stage  been  dominantly  influenced  hv  the 
"interest"  of  tin-  landowners;  and  even  when,  as  in  1846, 
the  landowning  "interest*'  has  suffered  defeat,  it  wai  i 
victor?  for  the  temporarily  antagonistic  "interest"  of 
the  manufacturers.  Every  country  in  the  world  i-  honey- 
combed with  associations  which  represenl  the  activity  of 
those  "interests."  No  man,  for  example,  i>  ignorant  of 
the  vital  pari  played  in  English  politics  by  the  Licensed 

Victuallers9  Association.  What  is  perhaps  more  singu- 
lar is  the  indirect  way  in  which  the  power  of  these  asso- 
ciations   has    had    to    he   exerted.       There    has    not,    indeed, 

been  anything  in  English  politics  which  avowedly  cor- 
responds    with    the    unclean    selfislmt  ss    of    an    American 

lobby.  The  representatives  of  tins,,  associations  have 
at   hast   secured   their  influence  through  the  open  door 

of  the  party  system.  Hut  even  Bagehol  could  admit 
the    existence    of    a    railway    ''interest"    in    the    House    of 

Commons,  at  the  same  time  that  he  viewed  with  suspicious 
dislike  the  growth  of  a  Labor  'Interest."    The  organist 
tion   of   political    life   has   heen    so    predominantly   ^ 
graphical  in  character  that   these  functions  ha\e  found 
no  direct  place  in  the  structure  <>f  government. 

90  Por  i  ragge  ti"M  «»r  iti.-  power  they  can  exert  cf.  the  M>m<>ir  of 
Lor<i  n  by  I.   T.  Hobhos         td   '    L  Hammond,  i 


ADMINISTRATIS  E    AREAS  00 

It  need  n<>t  be  Argued  tli.it  representation  l>\  function 
i>  more  real  khan  representation  bj  ares  '<>  make  if  i 
(Itiit    thai    it    has    tolid   advantages   to   offer.     Such   an 
irgumenl  would  !><•,  in  any  case,  untrue;  f<»r  the  inter* 
of  iipii  a^  neighbors  has  i  rery  solid  and  urgent   reality 
about   it.     Yi  i   there  can  l><    little  or  no  doubt   that   the 
political  opinions  of  men  are  largely  determined  by  their 
industrial  situation.     Disraeli's  theory  of  Tory  Democ 
•racy  was  largely  based  on  that   perception.     He  hoped 
that  a  proper  receptiveness  to  working-class  need  in 

lii^  Trade  Union  Act  of  1875,  would  bring  its  votes  to 
the  right  party.  To  give  that  industrial  .situation  ■ 
domicile  in  politics  i>  to  give  permanent  expression  to 
much  which  now  escapes  the  immediate  purview  of  polit- 
ical structure.  Professional  representation  is  not,  at 
leasl  in  idea,  a  new  device;  and  it  has  a  particular 
fascination  at  a  time  when  it  is  assuming  a  new  impor 
lance  in  industrial  government.  Anyone  who  has  watched 
the  development,  particularly  in  the  last  few  years,  of  ■ 
labor  theory  of  politics  will  have  noted  flu-  tendency  of 
trade-unionism  to  connect  itself,  nationally  and  locally, 
with  that  Bystem  of  ideas  and  needs  which  has  least 
opportunity  for  Belf-expression  at  the  present  time.  If 
it  is  possible  to  relate  that  theory  to  the  problems  of 
government,  a  new  and  valuable  Btream  of  thought  can 
be  dni  ct.  d  into  channels  where  if  is  badly  needed. 

Hut  what  is  wanted  in  professional  representation  is 
not  either  an  addition,  on  that  basis,  to  the  House  of 
Commons,  or  a  similar  reconstruction  of  the  House  of 
Lord  The  geographical   basis   has  a   real   value   for 

tain    types   of   problems,   particularly    with    those    in 

winch  the  int-  rest  of  consumers  is  dominantly  concerned; 

ui  As  Mr.  Graham  Wallas  has  desired,  TTu  dr. at  Society,  p.  339. 


to  ADMINISTRATIS  I.    AREAS 

and  it  would  result  in  dm  n  confusion  to  connect  it  with 
a  producers1  interest  which  i>  concerned  with  different 
problems.     Nor  does  the  tugg  ited    scond  chamlx  r  assist 

much.      It  s    ytluc    Ss    an    institution    M-riiis,    in    any    I   |   •. 

tin  r   a    foible  of   the    political    .scientists    tliau    an    e\pn 
>ion    of    resi    Deed;    and    it     looks    a*    though    the    second 

chamber  of  the  future  would  In  h  ^  a  d-  lib*  rativ<  as*  mbly 

than   a   bod\    of  administratis    experts   seeing   to    it    that 

tin-  hill  as  passi  d,  really  represented  the  will  of  tin  lower 
chamber,  and  holding  constant  inquiries,  not  necessarily 

at     London,    into    the    process    of    administration.        The 

real  wav,  surely,  in  which  to  organize  the  interest!  of 
producer!  is  by  working  out  a  delimitation  of  industry 
and  confiding  the  care  of  it!  problem!  to  those  most  con- 

(  <  rned  with  them.      This   is,  in   fact,  a  kind  of  federalism 

in  which  the  powers  represented  are  not  areas,  hut  func- 
tions. Anvone  can  see  that  the  railway!  art'  a!  real 
as  Lancashire;  and  exactly  as  the  specifically  local  prob- 
lems of  Lancashire  are  dealt  with  by  it,  .so  could  the 
specifically  functional  problems  of  the  railway!  be  dealt 
with  by  a  governing  body  of  its  own.     Tlic  necessary 

relation  to  the  state  is  riot  a  difficult  matter  of  adjust- 
ment.      It    would    be    necessary,    in    the    first    place,    to    - 

to  it  that  such  a  governing  body  did  not  pass  beyond 

its  powers;  that  would  be  in  part  a  matter  for  the  courts 
and  in  part,  on  the  permissive  side,  a  matter  for  some 
such  department  as  the  Hoard  of  Trade.  Where  the 
interest  of  the  public  outside  defiantly  entered  in.  SS, 
for  instance,  in  such  a  matter  as  railway  fares,  the  Rail- 
way Commissioner!  could  render  invaluable  service  by 
performing  the  function!  today  so  admirably  performed 
by  the  Interstate  Commerce  Commission  of  the  United 
States,     In  such  a  fashion,  it  should  not  be  necessary  to 


ADMINISTRATIVE    AREAS  71 

go  to    Parliament    at    all;  though   it    would,  of  coin-  'ill 

I),-    pOSQlblc    to    Use    it    as    a    court    <>!'    lust    instance    and    a 
depository  of  ^rievunci  It    is  worth  irhile  Doting  that 

tlit  attempt  to  ni\rni  industry  by  joinl  representative 
councils,  as  recommended  in  the  Whitlej  Report)  is  in 
reality  un  attempt  at  such  administrative  devolution 
which,  while  it  m  yei  retains  the  theory  of  parliamentary 
sovereignty,  is,  in  fact,  by  handing  over  the  making  of 
rules  to  the  trade  unions  and  the  employers,  creating, 
within  certain  function-,  wh.it  is  little  less  than  a  federal 
state.  The  Whitley  Report  is  based)  in  the  first  pla 
upon  a  division  of  powers.  It  divorces  the  business  of 
production  from  the  business  of  consumption  and  1< 
tin-  former  the  control  of  the  processes  upon  which  it  is 
engaged.     It  i^,  of  course,  true  thai   Parliament   remains 

outside  and  omnipotent;  but  no  one  can  for  a  moment 
doubt    that    if    Mich    a    delegated    power    proves    workable, 

parliamentary   control   will,  whatever   theory  may   say, 

be  as  real  in  practise  as  it  is  over  the  internal  legislation 
of  Canada  and  Australia,  both  of  which  are,  in  strict 
juristic  fact,  simply  immense  instances  of  decentralization. 
It  is  based,  in  the  second  place,  upon  an  attempt  to  dis- 
cover separate  and  national  units  of  indust  rial  government 
which,  while  they  may  at  first  work  in  independence,  will 
be  compelled  later  to  discover  some  means  of  connection. 
The   railways,   for  example,  cannot  possibly   regard   With 

indifference  what    is  happening  in   the  coal  mines,  and, 

sooner  or  later,  they  will  be  Compelled  to  work  out  a  basi> 
of  relationship  for  the  hinterland  of  their  mutual  interests. 
Neither  will,  of  course,  surrender  it  to  the  other;  and  in 
the  debate  over  terms  they  will  discover  the  value  of  its 
ision  to  a  body  representative  of  both,  exactly  as  has 
happened   in   the  genera]    history   <>f   political   federations. 


;j  A1>.MI\ISTKATI\  i:     AKKAS 

Hut    to   confine  our   ipeculation   to   th<  of   two 

industries  alozu  >-,  of  course,  to  obscure  the  ritta  th.it 
here  reveals  itself.  Por  if  then  is  one  thing  that  can 
I,.  predicted  writfa  certaintj  it  is  the  ultimate  interpend- 
enoe  of  .ill  forms  of  industry,  and  though  ire  may,  for 
purposes  of  convenience,  attempt  a  system  of  delimit  i 
tion,  Ha:  units  so  formed  are  bound  to  look  to  federation 
the  means  of  settling  their  common  different  ind 
realizing  their  common  amis,  in  the  trade  union  irorld, 
indeed,  this  movement    towards   federalism  has  been   *h«- 

d  measure  of  progress.  Trade  unions  grew  up  by 
chance  in  all  tunes  and  places;  hut  it  has  onlj  been  in 
th»  degree  to  irhich  they  have  recognized  the  unity  of 
interest  in  the  irorking-class  that  they  have  been  laved 
from  the  moral  and  economic  quagmire  of  particularism. 
Indeed  the  real  weakness  of  trade-unionism  has  been  an 
interna]  competition  of  units;  and  the  immense  accession 
of  strength  thai  such  things  as  the  Triple  Alliance  can 
bring  is  known  to  every  observer.  Of  the  larger 
process  of  production  this  is  not  Less  the  cas  II  we 
omit,  for  the  moment,  any  consideration  of  internal  antag- 
onisms within  each  industry,  it  is  clear  that  ire  are  facing 
an  industrial  future  in  which  the  joint  interests  of  all 
producers  must  he  matters  of  joint  debate.     Por  no  state 

ild  permit  the  anarchy  that  would  result  if  separate 
bargains  of  a   particularistic  kind  could  he  made  with 

every   produce]-  of  raw  materials  by  the  industrial  council 

of   each    trade.     They   involve   not    less    than   a    federal 

council    of    producer^    in    which    minimum    common    stand 

ardi  can  be  erected,  with  an  executive  organization  to 
enforce  them.     There  are  questions,  for  instance,  of  out- 
put, its   ■    .  hours,  training,  in  which  the  old  criteria  of 
( T.  (•<.!«•.  7%   World  of  Labour,  pp.  30S  M, 


ADMINISTRATIVE    ARE  \> 

supply  Mid  demand  ar<    no  longer  applicable.     The  only 

w.i\     in    whii'li    tliej    can    even    l»<     approached,    much    Iim 

>ol\t(l,    is   hv    agreement    through   dehale.       And    the    m<ir< 

tln>  Idea]  is  approached  the  more  trill  it  tend  to  create  an 
•  limine  sovereignty  either  outside  flic  legal  nigntv 

oi  Parliament,  or  using  tin*  latter  merely  as  an  organ  of 
gistration.     Nor  is  it   difficult    t<>  doubt    thai    tin    im- 
mense decentralization  t tut   is  implied  in  mch  effort  prill 
li.    better  managed  by  the  producers  themselv<        rt'l 
at   anv   rate  knon    the  conditions.     Their   interest    is   in 
the  making  of  real   solutions  rather  than  in  the  accept 
ance  of  those  partial  and  unsatisfactory  compromises  t<> 
which  governmental  interference  lias  in  recent   years  ae- 
customed  us,     Here  it  is  notable  that  experience  of  gov- 
ernment   intervention   <>n   ■   large   seal,    seems,   in    the 
industries  most   closely   related   to  the  business  of  war, 
to  have  produced  a  healthy  desire,  both  in  masters  and 
men,   for   self-determination    of   conditions    under   which 
work  is  ti>  be  carried  on.9      The  reaction  against  official- 
ism lia>  been  everywhere  intense;  and  part,  at   Least,  of 
the  welcome  accorded   to   the   Whitley   Report,   maj    bi 
traced  to  a  desire  to  free  the  processes  of  industry  from 
the  direct  coni rol  <d"  goi ernment. 

The   real   significance  of   that    welcome   lies,   however, 
much  deeper.     During  the  nineteenth  century  there  has 

been   growing   around   us   an    inchoate   hut    vital    economic 

federalism    to    which    far    too    little   attention    has    been 

paid.         The  rules  and  standards  of  things  like  the  l<  j 

and  medical  professions,  the  trade-unions  and,  in  ■  !• 

03  Sec  1 1 1 « -  Reports  of  Mr.  Lloyd  George's  Commissions  on  Indus- 
trial Unrest,  pattim. 

The  best  dlscu    Ion  oi  this  subject  is  still  J,  Paul  Boaconr, 

/■     /  'dcralis me   Econnmiijui. 


74  ADMINISTRATIS  E    AREAS 

degree,  the  teachers,  constitute  expression!  of  group- 
solidarity  of  irhich  the  state  has  been  compelled  to  take 
account.     There  has  been  inherent  in  them  ideals  of  Ian 

and    of    justice.      They    have    implied    a    decentralisation 

of  industrial  control  irhich  lias  grown  ever  wider  in  its 
ramifications.     The  influence  of   trade-union  standards, 

for  example,  has  been  <>l>\  ioui  in  the  s  ajf  in  irhich  ^)\crn- 
nient  has  been  compelled  t<>  insert  them  in  large  regions 

of   its  own   contractual    relations.      The   power   was   a^ain 

ieen  in  the  attitude  assumed  by  the  medical  profession 
to  tlu-  [nsurance  Act  of  11)11  and  the  concessions  it  sras 

able    to    exact.      It    is    a    solidarity    which    the    essentially 

political  conception  of  democracy,  as  exemplified  in  the 

Lot  lr  ChapHier  in  Franc.  and  the  attitude  to  trade- 
unions  of  Francifl  Place,'  was  compelled  to  deny;  but 
it  is  a  solidarity  which  the  Trade  Union  Act  of  18715  and 
the  Lois  des  Associations  of  1884  and  1901  tacitly  ad- 
mitted. They  are,  in  reality,  the  abolition,  for  political 
purposes,  of  the  economic  abstraction  called  man  as  set 
up  hv  the  individualistic  thinkers  of  the  nineteenth  cen- 
tury. The  object  of  these  groups  was  to  safeguard 
professional  interests.  Each  profession  and  industry 
had    questions    and    standards    peculiar    to     itself,    upon 

which   its   own   determination   was   the   most    competent. 

No  real  benefit  was  derived  from  state  intervention,  after 

a  certain  lerel  had  been  reached,*1  because  the  external 
character   of  government   in    relation    to    these   groups 

clothed    its    action    with    a    mechanical    uniformity    and    a 

rigorous  permanence  nnsuited  to  such  questions  as  ariw 

»5  Cf.   PftgH   <!«•  C-ist.-liau,   Droit   d'.lx.torinlinn,  ('lis.   1-4. 

■•■    W  1D1  .  Ufi   "f  /'/"'•'•  pp.  211  ft. 

M  I  do  not   denj,  thai   is  to  say,  the  value  of  government  inter- 
fereiioc  In  nreated  trad 


ADMINISTRATIVE    AREAS  ;:, 

in  so  delicate  and  complei  a  structure  a>  tliat  of  mod.  rn 
industry.  No  state,  for  example,  could  possible  enter 
into  the  minute  ingenuities  by  which  a  modern  trade- 
union  secures  the  observance  oi  the  standard  rata  The 
process  by  irbich  an  agreement  is  reached  between  mas- 
ters  and  men  is  left  to  the  interests  concernecL  The 
result  is  a  rule  of  conduct  which,  if  it  lacks  the  binding 
force  of  parliamentary  enactment,  has  yet  the  force  of 
law  to  the  consenting  powers.  And  it  is  probable,  a> 
M.  Paul-JBancour  lias  pointed  out,  that  thi>  removal 
of  the  settlement  from  the  province  of  the  state  has  this 
especial  value  that  it  prevents  the  use  of  the  public 
power  from  being  perverted  to  the  use  of  one  or  other 

of  the  parties  in  presence.  So  to  do  would,  as  be  has 
noted,  transform  every  political  conflict  into  a  naked 
cla>s-struggle  of  the   most   disastrous   kind. 

The  existence  of  this  accidental  decentralization,  valu- 
able as  it  is,  should  not  blind  us  to  its  imperfections. 
It  has  had  little  or  no  force  behind  it  save  that  of  strict 
compulsion  in  regard  to  standards.  No  one  imagines, 
for  instance,  that  the  miners  won  their  right  to  the 
checkweighman  OF  the  eight-hour  day,  other  than  by 
the  extent  to  which  they  had  unionized  their  trade." 
Industrially,  at   hast,  the  existence  of  standards  has  been 

less  the  result  of  a  realization  of  right  than  an  accep- 
tance of  necessity.  That  is  the  consequence  of  the  un- 
real relation  in  which  the  state  has  stood  to  industry. 
It  has  never  pretended,  for  example,  to  enforce  that 
national  minimum  of  civilized  life  which  ought,  at  the 
very  least,  to  be  the  price  of  capitalistic  existence.  Apart 
from  the  few  cases,  like  the  labor  of  women  and  children, 

9«  Op.  cit.,  p,  882. 

w  Webb,   Industrial  Democracy,  p. 


re  ai>mi\istk.\ti\  i      \i;i   \s 

in  which  ■  rery  obvious  humanitarianism  has  intervened, 
everj  conquesl  of  ■  fraction  <>f  thai  minimum  has  been 
the  work  of  organized  labor.  There  has  been,  thui  far, 
nothing  thai  could  with  truth  !>»•  called,  in  Rousseau's 
sense,  ■  "general  will"  <>i"  the  state.  What,  rather,  ire 
lia\  e  bad,  has  l>«  i  o  ■  series  of  conflicts  between  particular 

trills  in  winch  HOW  ODC  and  now  another  has  prevailed. 
Tin     attitude    in    which    labor    and    capital    and    the    state 

approach  each  industrial  situation  i>  so  different  thai 
anv  ultimate  harmony  between  them  seems  impossible. 
The  real  demand  of  Labor  is  for  tin-  democratization  of 
industrial  processes,  l>\  which  i^  meant  thai  the  truths 
of  popular  political  government  are  applicable  to  indus 
trial  government  as  well.  That,  obviously  enough,  can- 
not he  the  attitude  of  capital,  since  it  is  at  the  de- 
struction of  capitalism  that  it  is  aimed.     Nor,  broadly, 

i^  it  the  attitude  of  those-  who  operate  the  ma- 
chinery   of   the    modern    state:    for    the    Latter    are    douii- 

nantlv  influenced  by  the  prevailing  economic  system  and 
they  cannot,  in  the  nature  of  things,  aim  at  fundamental 
disturbance  of  the  economic  status  quo.  The  cono 
sions  tin  i  sees  to  secure  are  not  founded  upon  anv  theorv 
of  abstract  justice  but  upon  the  minimum  thai  musl  I" 
given  to  maintain  social  peace.  The  object  of  Labor 
is  the  foundation  of  a  new  social  order  which  is  in- 
compatible with  the  fragmentary  concessions  of  the  Last 
hundred  years. 

Here,  in  reality,  is  the  scat  of  the  modern  democratic 
discontent.     The    Liberty    and    equality    implied    in    the 

modern     state    are    purely     theoretic     in    character.      The 

industrial  worker  has  the  suffrage;  but  he  is  caughl   in 

the    ramifications    of   a    system    which    deprives    its    US€    of 

anv  fundamental  meaning.     He  finds  that  he  cannot  sc- 


ADMINISTRATE!:    AHKAS  77 

cure  from  tin  operations  of  politics  eith(  r  ili.it  say  in  the 
(!<  termination  <>!  his  life  or  the  opportunity  to  conquer  the 
riches  :t  can  offer,  that  a  democratic  civilization  is  sup- 
posed  to  afford.  II  i  that  democracy  in  politics  aloes 
n«>t  in  the  least  imply  democracy  in  industry  and,  since  the 
b  tter  portion  of  bis  life  is  spent  in  earning  1 1 i ^  daily 
bread,  it  is  to  the  latter  thai  he  has  turned.  II<  has 
found  the  Btate  useless  for  the  purpose  li«'  has  in  view, 
and  thai  is  irhy  be  musl  refuse  to  accept  it  as  in  any 
fundamental  sense  the  representative  of  the  community. 
The  economic  federalism  thai  exists  Largely  results  from 
In-  effort  to  conquer  through  industrial  action  what  he 
has  failed  to  gain  from  political.  The  labor  movement 
has  been  ln>  real  training-ground  in  politic-.  It  has, 
of  course,  thus  far  been  largely  confined  to  matt  rial 
questions  of  hours  and  vrages  but  it   has  come,  in  more 

recent     years,    to    turn    more    and    more    its    attention    to 

questions  of  policy,  such  as  discipline  and  the  like.  It 
is  refusing,  for  instance,  to  allow  labor  to  be  extracted 
from  the  Laborer  and   to  be  regarded  as  a  commodity 

which   can   be  bought    and   sold   at   will.      Nothing  is  more 

significant  in  recent  trade-union  history  than  things  like 
the  famous  Knox  strike;  for  it  the  employers  are  driven 
to  make  the  question  of  the  right  to  dismissal  something 
in  which  other  criteria  than  their  arbitrary  will  may 
ent<  r,  obviously  s  serious  inroad  has  been  made  upon  the 
autocracy  of  their  present  control. 

The    Whithv    Report    has    emphasized    the    need    for    a 
share   in    that    control    on    the   pari    of   the   worker-.      Not 

less  important,  it  has  insisted  that  this  control  must 
receive  its  expression  through  the  trade-unions.  The 
solutions  that  such  joint  -effort  as  the  councils  it  estab- 
lishes  m.iy    propose   trill,  of  course,  be   merely    interim 


78  ADMINISTRATIVE    AREAS 

solutions;  fori  in  the  f iimi.-uiu  nt al   -<  as< •,  Hi.  i  nnot   l>e 

better  relation!  between  two  groups  one  of  irhicfa  i^  aim- 
ing at  the  abolition  of  the  Other.  The  \«rv  admission, 
indeed,  of  joint-COntrol    may    well    presage   tin-   advent    of 

that  transition  period  from  capitalism  t<>  industrial 
democracv  irhich  prill  doubtless  be  characterised  by  la- 
bor's taking  a  greater  share  in  industrial  government* 
The  eiperimenti  however  its  result,  is  hound  to  involve 
in  reaching  change*  If  it  fails,  an  organized  labor  will 
confront  an  organised  capital  with  the  knowledge  that 

the  immense  Sacrifices  it  has  made  in  the  last  four  years 
1  |  it   made   for   a    lie;    for   if  the    result   of   the   war    ||    not 

an  improvement  in  the  internal  conditions  of  the  western 
democracies,  the  unrest  of  the  period  before  1914  is  bound 
to  go  further;  for  no  experiment  in  democratization  thai 

is  successful  can  stop  short  of  completeness. 

And  the  immediate  implications  of  its  induction  are 
important.  The  systematic  consideration  of  industrial 
questions,  locally  as  well  as  nationally,  is  a  training  in 
■elf-government  of  which  the  significance  is  not  to  be 
minimized.  For  it  is  vital  to  bear  in  mind  that  the 
consideration  of  industrial  questions  cannot  stop  short 
at  industry.  Inevitably  they  will  tend  more  and  more 
to  emphasize  the  connection  between  industry  and  the 
general  background  of  social  life.  Labor,  for  example, 
i->  already  well  aware  of  the  importance  to  itself  of  edu- 
cation;100 and  in  the  cotton  trade,  to  take  only  the 
most  notable  instance,  an  extension  of  the  educational 
System  will  have  the  most  far  reaching  effect  on  wages. 
Wages,  again,  are  so  intimately  connected  with  rent  that 
the  housings  \vf  <  m   i){  each  wage  district    is   immediately 

t^0  Cf.  Lnhnur  nvf  th,'  AVic  Social  Onhr,  pmutm,  and  Fisher, 
Eriurntiminl   0p##6&##,    p.    9. 


ADMINISTRATIVE    AREAS  W 

brought  into  perspective.  The  Industrial  Council,  in 
fact)  trill  Sod  itself  taking  uj>  attitudes  <>n  tocisJ  questions 
in  exactly  tin-  tame  way  thai  the  trade  unionist  has  been 
driven  to  consider  fin-  general  theory  of  the  state,  to  ban 
an  attitude  to  life,  in  addition  to  bis  specific,  immediate 
economic  demands.  Indeed  if  Lb  permissible  to  suggest 
thai  the  Industrial  Councils  will  be  Buccessful  in  propor- 
tion as  tluv  consider  profoundly  the  ramifications  of  the 
immediate  issue  they  confront.  That  does  not,  of  com 
mean  that  they  will  pasfl  resolutions  on  secular  education 
or  the  disestablishment  of  the  church;  though  it  may  well 
had  them  locally  to  insist  pn  the  neglect  of  things  1  i W « • 
the  provision  of  technical  instruction  and  nationally  to 
influence  profoundly  such  things  as  fiscal  policy  and  inter- 
national relations. 

It  is  obvious,  in  fact,  that  immediately  production  is 
given  the  opportunity  of  organized  Bpeech,  its  utterance 

must  profoundly  affect  political  programs  in  nation  and 
locality.  The  light  it  throws  upon  the  process  of  pro- 
duction throws  light  upon  the  needs  of  the  consumer  a.s 
well.  It  in  fact  acts  in  such  fashion  as  to  orientate  the 
consumer  in  the  realities  of  the  situation.  An  industrial 
council  that  asked  for  better  education  in  Manchester, 
for  example,  could  hardly  meei  with  a  light  refusal  from 
the  municipal  council.  Nor  ought  one  to  minimize  the 
value  of  giving  to  the  employers  the  opportunity  of  sys- 
tematic meetings  with  labor.  That  will  not  produce  tin- 
abdication  of  the  capitalist.  But  it  will  teach  him  how 
I  lentially  human  are  at  once  the  demands  of  labor  and 
the   labor   "agitator*    himself.      Nothing,    surely,    is    ever 

lost  by  tli«'  rational  consideration  of  difficulties.     The  rat. 

of  pr<»LT< SS  towards  the  realization  of  labor's  program 
itself  depends  upon  the  degree  in  which  knowledge  of  its 


so  ADMINISTR  \TI\  r.    ARE  \s 

character  and  implicationi  ia   ipread  abroad.     The  in 
doBtriul  council  is  a  vehicle  toward*  thai  end.     The  em 
ployer  irho  meets  th<   trade-unionist   round  a  tabic  talks 
of  his  ideas  at   his  club.     The  aray  in  which  Mr.  Webb 
has  permeated  the  libera]  party  by  conversation,  by  pub 
lished  writings,  by  Lectures,  is  onlv  different  Prom  the  kind 
of  permeation  these  councils  afford  in  that  he  is  one  and 
the  councils  are  many.     They  are  an  element  in  making 
the  needs  and  dk  sires  of  labor  public  Buch  aa  it  haa  rarely 
before  enjoyed.     We  ought   to  be  optimistic  enough  to 

believe  that  labor  will  be  fortunate  in  that  publicity. 


IV 

It  has  already  been  suggested  that  the  Whitley  Report 
Accepts  the  chaotic  federalism  of  the  modern  industrial 

system  and  brings  Into  it  something  like  ordered  connec- 
tion. It  docs  not,  indeed,  suggest,  as  yet,  any  relationship 
between  the  national  industrial  councils.       That  however, 

as  lias  been  pointed  out,  must  logically  result  from  the 
very  fact  of  industrial  interdependence.  Such  a  hierar- 
chical structure,  from  works  to  district,  from  district 
to  national  industry,  from  the  national  unit  to  the  whole 

system  of  production  is,  in  reality.  Little  less  than  the 

creation  of  a  state.  It  brings  the  whole  process  of  pro- 
duction face  to  face  frith  the  whole  process  of  consump- 
tion; for  the  latter,  dninin.-mtly  an  interest  of  territorial 

juxtaposition,  is  the  underlying  implication  of  our  par- 
liamentary structure.  This  division  of  function  necessarily 

throws    its    shadow   far  across   our   usual    concepts   of   the 

stab  .  We  have,  indeed,  so  naturally  regarded  the  latto  r 
aa  the  repn  tentative  of  society  aa  a  whole  thai  our  own 
erection  of  an  authority  which  ia  in  a  position  to  challenge 


ADMINISTRATIS  E    AREAS  81 

the  uniqueness  <>f  thai  claim  comes  with  something  «'t  ■ 
shock.  Net  it  is  Dothing  less  thai  is  i 1 1  \ <>1  \ « « I  in  the 
logical  outcome  of  out  presenl  tendencies. 

Nothing  less,  at  least,  on  a  single  supposition.  If  it  is 
at  all  true  that  the  c<  utir  of  power  is  passing  more  and 
more  t<>  the  working  class  then  this  division  of  control  by 
function  has  a  peculiar  significance  thai  demands  ■  close 
analysis.  So  one,  indeed,  who  examined  the  condition  of 
labor  as  it  is  organized  in  the  trade  anions  today  could 
Beriously  urge  thai  it  was  fitted  to  take  charge  of  tin 
Btate.  Hut  if  is  at  leasi  equally  true  that  so  long  a> 
the  Btate  is  buili  upon  a  class  structure  of  which  capital- 
ism is  the  main  characteristic  the  interest  of  the  working 
class  is  not  dominantly  regarded.  Possibly,  of  course, 
the  outcome  of  the  uext  few  years  may  be  a  new  kind  of 
industrial  feudalism  in  which  the  workers  will  exchange 
liberty    for    comfort.     Certainly    as    Dean    Pound    has 

*  * 

shown,101  there  ha\e  heen  important  ways  in  which  the  lasl 
fifty  years  have  Been  a  remarkable  transition  from  con- 
tract to  status.  Were  thai  to  be  the  case  it  i>  probable 
that  the  industrial  councils  contemplated  by  the  Whitley 

Report  would  either  serve  no  useful  purpose  at  all,  or 
act    merely  as  a   means  towards  Lulling  the  creative  tenets 

of  trade  unionism  into  somnolence.  It  is  in  any  event 
true  that  tiny  predicate  a  trade  unionism  far  more  virile 

and  intelligent   than  in  the  past.      What   it  secures  i>  i^>ing 

to  depend  in  part  upon  the  ability  with  which  its  case 
is  presented  and  in  part  upon  the  way  in  which  it  organ- 
izes each  special   industry.     A    trade-union   defeated   at 

the  council   table  will  gel   even  less  than  it    now    gets  h\    an 

appeal  to  Parliament.  Hut  there  is  no  special  occasion 
f<>r  mch  pessimism.     Even  when  the  lasi  fears  of  a  guar- 

101    Sec  tiis  article  >'i  Uk*  H<irvur<l   I.  '..    l!.--i,w  for  January,   llH7. 


s_>  ADMINISTRATIVE    AREAS 

ante,    of  capitalist   existence  bj    the  state1      have  been 

taken    into    account,    it     nmaiih    true    that     the    forces    of 

education  are  on  <!>«•  iide  of  labor.  It  remains  not  less 
trui  tliat  the  appeal  it  can  make  h  to  t In-  name  of  freedom 
and)  however  curiously,  thai   appeal  has  its  roots  deep 

in  i\.i\    human   loul.       If  it   can  DC  shown   that    capitalism 

is  incompatible  with  freedom  and  that  tin-  modern  itate 

must    nccessarih    assume   a    capitalistic   complexion,    there 

is  everi   reason  t«»  suppose  that  the  movement  of  events 

will    be    in    the   direction    of    more   democracy    rather    than 

leas.  In  that  aspect  the  future  of  the  staff  becomes  an 
inijuirv  of  special  significance.     If  there  is  a  necessary 

permanence  about  the  Sovereignty  of  the  King  in  Parlia- 
ment what,  dearly,  we  must  expect  is  a  gradual  replace- 
ment  of  a  capitalist   state  by  a   form  of  organization  in 

which  a  vast  series  of  government  departments  control 

modern  industries  as  they  now  control  the  telephone  and 
postal  services,  Parliament  would  represent  producer 
not    leaf    than    consumer    and    the   business    of    production 

would   be  carried   on  by   officials   in   something  like   the 

fashion  in  which  local  government  is  now  Organized  rela- 
tive to  central  control. 

Vet    it    is   surely   difficult    to  believe   that   a   simple   na- 
tionalization   has   anything   of    final    value    to    contribute 

to  th«-  general  problem  before  us.     Nationalisation  might 

w.  11  solve  the  basic  problem  of  property  in  the  sense  that 

expropriation  of  the  capitalist  would  leave  a  surplus  of 

dth  for  the  increase  of  wages.      Hut   that   is  in   no  real 

s.nse  the  root  of  tin-  matter.  What  our  general  experi- 
ence of  nationalization  suggests  is  its  invariable  tendency 

to  the  bureaucratic  government   of   the  industries  con- 

ioj   Coir,  Self-nirvrrnment   in   ImhutrH,   Appendll    B. 


ADMINISTRATIN  1.    Aid. AS 

<•<  Tin  (1.  The  Po§1  Office  provides,  <>n  the  whole,  a  service 
which  comparef  more  than  favorably  with  that  of  any 
other  country;  but  n<»  one  can  examine  the  Holt  Report 
without  the  feeling  that  it  has  not  ^onr  to  tin-  rout  of 
industrial  freedom*  The  lame  Li  true,  in  an  t\<i.  iter 
degree,  <>f  municipal  ownership.  There  is  a  -> I i^l 1 1 1  \  bet- 
ter  average    rate  <>f    prages,   and   a    slight    d<  crease    in    the 

average  rate  <»f  hours  of  labor.  Hut  no  real  attempt  is 
anywhere  made  at  the  democratization  of  any  industry 
owned,  <>r  operated,  bj   the  agencies  of  the  itate.     It  is 

a  fact  of  t lie  highest  import  that  in  Prance  tin-  most 
revolutionary  hypotheses  <>f  social  reorganization  should 
have  come  from  the  employees  <>f  the  state.  That  lias 
not  been  true  of  England;  but  the  two  definite  demands 
for  a  share  in  industrial  control  have  come  from  a  section 

of  tin    postal  worker-,  on  tin-  one  hand,  arid  the  employ 

of  the  monopolistically-organized  and  Btate-protected  rail- 
ways,  on  the  other.     Any  government  which  charges  itself 

with  industrial  control  will  he  hound,  first  of  all,  to  look 
to  continuity  of  service.  In  that  aspect  the  officials  will 
be    tempted   to   keep   control    in   their   own   hand-.      That, 

as  they  believe,  i-  necessary  in  the  interests  of  standards 

of  efficiency  and  of  uniformity  of  regulation.  But  that 
is    also,   in   sober   fact,   to    state   a    final    case   against    any 

itematic  national  control  in  the  sense  of  the  control 

I  by  government  over  the  telephones.     It  implies 

a  centralization  which,  while  it  may  improve  the  material 

condition  of  the  worker,  doe-  nothing  to  offer  him  a  defi- 
nite spiritual  interest   in  his  work.      It  is  not   enough,  as  a 

recent   and   remarkable  government    report    has   pointed 

out,"'4  to   put   up  a  suggestion   boi    in   the  office  and   urge 

103  Cf.    inv    Authority   in    th>      "         rn   Stntt  .   Ck   5. 
10*    It.y.rt    on    Worki    Committft$,   }>. 


84-  ADBflNISTRATIVi:    AHKAS 

that  the  worker's  experience  and  inventiveness  ought  to 
find  adequate  satisfaction  there*  Thai  is  not  and  can- 
not   he  tin    cast*.      The  only   real   satisfaction   COmCf  from 

an  actual  share  in  deliberation  and  in  the  determination 
of  its  results.  Thai  has  been  the  value  of  much  of  the 
success  of  the  Works  Committees  so  recently  instituted 
bi  the  war;  the  opportunity  organically  to  state  ■  case 
satisfies  tin-  hunger  for  self-determination  which  cannoi 
It.  subverted  in  any  system  which  accepts  the  criteria  of 
democracy.  We  cannot,  of  course,  govern  industry  by 
public  meeting;  bui  we  cannot  govern  industry  wel]  until 
the  thoughts  and  aspirations  of  its  workers  find  a  full 
place  in  its  insl it ui  ions. 

Thai  is  why  the  organization  of  industry  must  neces- 
sarily relate  itself  to  federalism.  The  worker  must  be 
given  the  opportunity  of  a  real  voice  in  the  choosing  of 

industrial  management.      It  must  be  understood  that  there 

is  a  politics  of  industry  not  less  real  than  the  politics  of 

the  House  of  Commons,     A  workshop  that  elects  its  own 

foreman,  a  clerical  staff  that  chooses  its  own  chief,  heads 

of  departments  who  choose  their  own  manager,  have  a 

far  more  real  interest  in  the  firm  for  which  they  work 
than  if  the  bond  between  them  and  their  employers  is  the 
merely   nominal   bond  of  wages.      Nothing,   indeed,  would 

be  more  fatal  than  such  an  industrial  organization  as  led 

cS 

to  the  state  being  regarded  simply  as  an  employer. 
Trade-unions  would  then,  as  Mr.  Webb  has  insisted,10*1  be 
necessary;  but  would  be  necessary  for  purposes  fatal  to 

the  underlying  conception   of   the   state.      They   would   be 

organizations  of  which  the  purpose  would  be  Bimply  to 

drive  as  hard  a  bargain  as   possible  with   the  government 
department     which    controlled     them;    and     their     BUCCCSS 
10B  Industrial  Democracy,  last  chapter. 


ADMINISTRATING    AKKAS  85 

irould  be  in  proportion   to  the  size  and  communal   im- 
portance of   the   industry   concerned.     In   such   a   con 
(■(  ption  there  la  aothing  of  thai  idealism  it  is  10  neo  wary 
to  introduce  into  political   processes.     .Mi-.  Wallas  b 
noted    the    mystic   effect  ""    upon    the   youthful    porter 

of     identification     with     the     Great      Northern      Railway. 

But    the   influ. nee   lasts  onlv   for   the   first    few   months 

of  labor.  Once  it  has  become  B  daily  routine  what  he 
notes    is    not    the   .splendor   of    .service,    the    pride   of    Self- 

supportj  but  the  technical  drudgery  if  involves.  The 
real  problem  of  industrial  organization  is  to  enable  the 
porter  to  retain  through  his  working  life  the  enthusiasm 

of  its  inception. 

It  is  the  main  problem  of  the  state  as  well  ;  and  that 
is  why  we  cannot  divorce  the  problem  of  industry  there- 
from. What,  in  reality,  is  involved  is  the  meaning  of 
freedom,  the  way  in  which  we  translate  our  definition  of 
its  content    into  the  stuff  of  which  the  state  is  made.     We 

perhaps  too  little  remember  that   the  theory  of  freedom 

has  a  history  in  the  light  of  which  its  immediate  signifi- 
cance must  he  read.  Lord  Morley  has  BOmewhere  said 
that  the  definitions  of  liberty  are  innumerable,  but  they 
have  been,  for  the  most  part,  conceived  in  narrowly  polit- 
ical terms.""  What  we  need  is  rather  such  a  conception 
as  applies  to  those  impulses  of  men  that  are  mainly  at 
work   in   political    Society.      It    is   herein    that    the   value  of 

T.  II.  Green's  definition  of  liberty  is  to  be  found.1       For 

our  main  business  is  to  get  the  creative  impulses  of  men 

to  work  and  it  is  herein  that  modern  organization  has 

iw  7%  Qtmk  8oeUty,  p.  7. 

This  is  eminently  true,  f<»r  Instance,  of  the  criterion  raggesied 

DJ    Acton    in   his    Hi$tor$   of    l'n<<l<>m.    p.   &      I*    fails    because   it    bofl 
no  relevance  to  the  problem  of  iinhi  atrial  organization. 
I    Works,  II,  p.  MM 


66  ADMINISTRATIVE    AREAS 

m>  MiMi.ilIv  failed.  Concentration  of  power  has  been,)  in 
general,  the  only  known  source  of  efficiency,  nor  has  it 
l><  in  ie<  d  t  Ji.it  it  implies  the  negation  of  democracy.  Por, 
after  all,  where  power  ii  concentrated  in  ■  few  handi 

there    i>    lacking    that     spirit     of    responsibility    Without 

which  no  man  can  attain  the  full  expression  of  his  facul- 
ties.    There  is  more  than  a  negative  danger  in  such  eon 

(•nitration.      It   is   not    Only,  as    Acton   scathingly    laid,1* 

that  it  "corrodes  the  conscience,  hardens  the  heart,  and 

confounds  the  understanding"  of  those  who  hold  power; 

it  deadens  in  any  state  the  impulses  uhich  make  for 
tlie   greatneai   of   a   civilization.      That    II   w  h  v    anv   state 

in  which  the  political  office  is  united  to  the  religious  will 

sooner  or  later  t  read  t  he  path  of  despotism.     That  is  w  by, 

also,  anv  .state  in  which  a  single  class  is  predominant 
sooner  or  later  must  disregard  the  public  interest  in 
order  to  retain  their  powur.  That  disregard,  inched, 
will    cause    the   destruction   of   their   government;    for   the 

belief  of  Plato  thai  a  state  ought  not  to  secure  obedience 

if  it  fails  to  secure  respect  is  no  more  than  the  summary 
of  historic  experience.  The  real  truth  is  that  the  niem- 
li-  is  of  a  state  are  powerless  against  an  efficient  central- 
isation wielded  in  the  interest  of  any  social  fragment, 
however  large.  It  prevents  the  balance  of  associations 
which  is  the  safeguard  of  liberty.  It  secures  uniformity 
of  which,  from  the  very  constitution  of  human  nature, 
liberty  is  the  direct  antithesis.  For  where  the  creative 
impulses  of  men  are  given  full  play,  there  is  bound  to 
be  diversity,  and  diversity  provokes,  in  its  presence,  a 
decentralized  organization  to  support  it.  That  is  why 
the  secret  of  liberty  is  the  division  of  power.  Rut  that 
political    system    in    which    a    division    of   power    is    most 

io»  LIutory  of   Pr$*dQm,  p.    11. 


AI).MI\ISTR.\TI\  1       AIM    \S  S7 

iinlv    maintained    i>    a    fed*  ral    system;    and,    indeed, 

there  Lb  a  close  oonnectioD  between  the  idea  of  federal- 
ism and  the  id*  a  of  liberty. 

In  Europe]  at  least  this  is  too  little  understood]  for 
the  BuJBcienl  reason  that  liberty  and  equality  are  under- 
itood  m  separate  instead  of  as  different    facets  of  the 

i in ■  ideal.  Nor  can  we  preserve  equality  in  anv  itate 
without  a  measure  <>f  federal  structure;  for  the  distribu- 
tion <>f  power  is  the  real  check  upon  its  usurpation.  It 
is  more  than  that.  It  is  the  only  way  in  which  suffi- 
cient centres  can  be  created  of  deliberation  and  enter- 
prise  t<>   enlist    the  abilities  of   men    in    the   public   servi 

It  is  clear,  for  example,  that  the  real  barrier  to  creative 

opinion    in    flic    Roman   Catholic   Church    is    its    excessive 

centralization.     So  long  as  ideas  radiate  outwards  from 

a  single  point  in  the  circle  they  will  not  adequately  radiate 
inwanK  from  the  circumference.  The  concentration  of 
power  in  the  papal  hands  will  mean  that  thought  is  in- 
active everywhere  save  at   the  point   of   responsibility; 

or,  at  least,  that  thought  will  strive  less  to  master  the 
facts  than  to  distort  them  to  the  service  of  power.  A 
system  that  cannot  contain  Lamennais  and  Dollinger  and 

Tyrrell  stands,  governmentally,  self-condemned.110     But 

what  is  here  true  of  Rome  is  true  also  of  the  political 
state.  We  need  to  federalize  the  organization  of  Kng- 
land  simply  in  order  to  give  play  to  the  mass  of  creative 
opinion     which     remains     today     untouched     by     political 

forces.  It  is  here  urged  that  the  secret  of  its  revivifica- 
tion  is   to   associate   in   the   exercise  of   power    those   who 

have  thus  far  been  too  merely  its  subjects.  The  prin- 
ciple of  tacit  consent    upon  which  we  work  in  government 

110  Sec  this  worked  out  in  detail  in  Chapter  III  of  my  .tuthority 
in  the  Modi  m  8tatt . 


88  ADMINISTRATIVE    AREAS 

i^  too  theoretical  In  character,  It  results  in  the  virtual 
annihilation  of  every  individuality  thai  is  not  either  at 
the   center   of   things,   or   finding   its   compensation    for 

exclusion    in    sonic    Mich    activity    as    art.      \\V    have    to 

provide  that  political  consenl  be  no  longer  passive,  but 
active  in  character,  that  it  come  from  free  and  instructed 
minds  widespread  among  the  masi  of  men. 


What,  in  fact,  does  this  involve?  No  Bystem  of  poli- 
tics is  firmly  grounded  thai  is  not  Becurely  built  upon  the 
past.  We  cannot  attempt  anything  like  the  revolution 
in  Bpiritual  form  of  which  ire  have  need  in  a  day.  We 
cannot,  even   in  our   remotest    dreams,  give  every   man 

some  actual  share  in  the  business  of  administration.     Not, 

indeed,  that   Aristotle's  definition  of  citizenship  has  not 

enshrined  a  truth  we  too  easily  forget;  hut  the  si/»- 
of  the  modern  state  makes  tin-  hope  of  anything  other 
than  a  representative  system  not  merely  inadmissable  but, 
in  the  nature  of  things,  undesirable.  We  have  to  work 
with  the  materials  we  are  given,  and  that  involves  the 
acceptance  of  their  limited  capacity. 

We  start  from  the  theoretic  purpose  we  admit  in  the 
vtate.      It  aims  at  the  development  of  the  fullest  capacity 

for   L,roud   possessed   by   its   members.     That    implies   at 

once  liberty  and  equality;  and  it  implies  a  federal  struc- 
ture that  they  may  he  given  their  due  expression.  It 
does  not  matter  whether  the  federalism  be  a  division  of 
the  unified  purpose  from  above,  rather  than  from  below, 
whether  it  take,  that  is  to  Bay,  the  form  of  decentraliza- 
tion rather  than  the  type  of  division  with  which  the 
government    of   the    Tinted    States   has   made   us    familiar. 

What   i^  important   is  that  too  great    power  should  at 


ADMIMSTKA  TINT.     AREAS  89 

no  place  be  concentrated  in  ■  few  hands  1«   '  the  individ 
uality  of  man  be  repressed  by  the  verj   institutions  he 
has  created  to  preserve  it. 

The  problem  is  not  merely  one  of  area.  Primarily, 
it  is  a  problem  of  functions  simply  because  the  institu- 
tions of  areas  are,  in  England  at  least,  reasonably  ad. 
quate  to  their  purpose,  and  because  it  is  in  the  aspect 
of  function  that  the  possibilities  of  decentralization  are 
most  strikingly  manifest.  Unless  we  make  power  a 
process  of  democracy  we  withdraw  energy  from  the  con- 
sideration of  social  questions  thai   could  with  value  be 

directed  into  its  channels.  A  Bingle  illustration  will  per- 
haps throw  the  process  at  issue  into  a  char  perspective. 
It  18  doubtful  whether  imv  civil  service  in  the  world  has 
so  noble  a  record  as  the  Civil  Service  of  England.  Yet 
no  one  can  examine  its  workings  without  being  struck  at 
a  certain  curious  intellectual  inertia  which  suggests  a 
too  rigid  stratification.  The  reason  is  not  far  to  seek. 
Its  system  of  promotion  is  determined  from  above.  Little 
or  no  attempt  is  made  to  associate  any  personnel  Bave 
that  of  heads  of  departments  in  the  determination  of  any 
advance  other  than  that  of  automatic  increase  of  pa  v. 
The  result  is  that  the  ideal  of  work  chiefly  inculcated  is 
that    of    "correctne88.w      Too    great    an    activity    outside 

the  department  is  to  be  deprecated  because  it  leads  the 
heads  to  believe  that  one's  full  energy  is  not  concentrated 

upon  the  labor  in  hand.  It  is  best  simply  to  follow  the 
lines  they  lay  down  and  establish  a  reputation  for  zeal 
and  punctuality."  Inventions  should  be  confined  to 
new  filing  systems  or  a  better  method  of  keeping  accounts. 
Things    like    this    surely    explain    the    abyss    that     exists 

111  Cf.  The  amusing  comments  of   Mr.   F.   G.    Heath,    Tin    BHHtk 
Civil  Strvicr,  Chs.   11    11. 


90  ADMINISTRATIVE    AREAS 

between  the  division!  of  the  lerrio  If  promotion  sfere, 
within  each  office,  determined  bjj  ■  council  in  irhich  each 
lection  had  elected  representatives,  tin-  heads  of  depart- 
ments would  Irani  much  and  call  forth  inoi  \<>  sys- 
tem   OUghi    to    be    considered    satisfactory    in    which    the 

motives  to  originality  are  not  emphasized*  It  ^ir  Henry 
Taylor  does  bii  work  thoroughly,  "The  Statesman"  ought 

to    he    an    element    in    Ins    promotion.       Wavs    and    in<  an> 

should  be  provided  irhereby  the  tragedy  of  Balzac's  "/ 
Employfo*1  can  be  avoided.     Bui  thai  can  only  be  effected 
by  the  mosi  thorough-going  democratization. 

If  this  is  true  of  the  Civil  Service)  it  is  far  more  true 
of  business  enterprises;  for  there  the  exigencies  of  a 
capitalistically-organized  industrial  system  have  necessi- 
tated the  retention  of  oligarchic  institutions.  That  do<  I 
not  mean  to  say  that  ability  meets  no  recognition*  It 
implies  rather  that  the  only  interest  organized  by  capi- 
talistic industry  is  the  materia]  interest.  The  spiritual 
factors  which  self-government  calls  into  play  are  too 
widely  ignored.  It  is  the  error  which  is  made  in  a 
military  Bvstem  which  fails  to  emphasize  the  individual 

m/  •  I 

initiative    of    the    private    soldier;    without    it,    the    army 

may  be  a  magnificent  machine,  but   with  it   there  comes 

into  activity  a  spirit  which,  other  factors  being  equal, 
i^   indomitable.      For  that    initiative   can   feed   itself   upon 

the  ideals  at  stake  and  it  fights  againsi  overwhelming 
odds  with  a  fire  unquenchable.     If  such  an  effori  is  neo  - 

lary  in  the  army  of  war,  it  is  surely  far  more  vital 
in  the  army  of  peace.      The  brain  of  an  army  may  be  in 

its  general  Btaff;  but  that  oligarchy  is  dependent  upon 

that   sum  of  qualities   we  call   morale  for   the   BUCCesi  of 

its  effori i. 

The   same   holds    true   in    the   industrial    Sphere;    and, 


ADMINISTRATIVE    AREAS  91 

so  far,  we  have  made  n<>  effort  of  any  kind  to  apply  •'• 

Everyone  knows  that  profit  sharing  and  labor  oo  part- 
nership  art-    no    more    than    itKnjni    iiominis    uml>r<u\      In 

evitably,  therefore,  ire  have  Buffered  from  political  inertia 
and  economic  discontent.  We  have  suffered  from  polil 
ical  inertia  because  the  reaction  of  economic  upon  polit- 
ical structure  is  so  profound*  We  have  suffered  from 
economic  discontent  because  the  structure  of  industry 
dors  not  provide  an  adequate  expression  for  tin-  impulses 
of  men.     That   is  why  it   is  rather  upon  industry  than 

upon  politics,  upon  function  rather  than   upon  ana,  that 

the  consideration  of  ■  revival  of  political  interest  must 
centre.     We  are  presented  with  a  quasi-federal  system: 

that  is  to  say  that  large  functions  are  left  by  the  state 
to  settle  their  own  problems,  lint,  on  the  one  hand,  no 
real  effort  has  been  made  to  relate  that  economic*  federal- 
ism to  the  categories  of  the  political  structure,  and,  on 
the  other,  within  each  function  there  is  no  adequate 
representative  system. 

The  Whitley  Report,  in  substance,  though  not  in  form, 
answers    the    first    need.     It    gives    state-recognition    to 

those  industrial  units  sufficiently  organized  to  warrant 
it,  and  provides  the  means  for  unorganized  units  to  pass 
into  the  stage  of  organization  and  recognition.  Sooner 
or  later,  it  has  here  been  suggested,  that  recognition  of 
control  of  productive  effort,  of  functions,  will  tend  to 
influence   the   control    of   geographical    areas,    and    so    to 

fructify  the  normal  life  of  politics.  From  the  purely 
interna]  point  of  view,  far  Less  is  done.  An  intermediate 
economic    sovereignty    is    recognized    in    the    industrial 

councils  in  the  sense  that  the  solutions  they  propose  for 

the  problems  of  industry  will,  for  working  purposes, 
become  law.      But  no  attempt  is   made  as,  in  the  nature 


M  \l).MIM> TRATIVE    AREAS 

of  things,  it  hardly  could  l><  m.idt ,  to  determine  in  what 
direction  the  balance  <>f  forces  i-  to  rest* 

\<\  that  balance  of  forcea  ia  the  crui  of  the  whole 
question  and  the  significance  of  this  neu  structure  is  no* 

mpletelj  understood  until  th<'  direction  of  political 
evolution   is,  however  sununarilji  examined*     It    is  g*  n- 

dlv  admitted  thai  the  outbreak  of  the  present  war 
heralded  the  end  <>l  an  age;  bu1  so  far,  ire  have  too  little 
examined  the  meaning  <>t"  what  has  gone  before.  Briefly, 
the  nineteenth  century  sras  the  period  of  middle-class 
supremacy.  Those,  that  i>  to  say,  who  srere  po  ed  of 
mobile  economic  power  supplanted  in  the  state  those  whose 
holdings  were  so  Largely  confined  to  real  property.  It  is 
inaccurate  to  Bay   thai   the  dominant   characteristic  of 

this  middle  class  was  the  pursuit  of  money;  Harpagon 
apart,  money  was  for  the  city  alderman  who  traded  with 
the  Mast  Indies  no  more  a  final  object  than  it  was  the 
final  object  of  an  English  squire  to  increase  his  family 
acres  by  ■  lucky  marriage  for  his  eldest  son;11"  both 
valued  their  possessions  as  the  symbol  of  a  power  which 

Could  manifest  itself  in  the  mosl  varied  ways.  Both  se- 
cured a   share  in  the  political  supremacy  of  their  class 

a>  an  expression  of  its  economic  supremacy. 

Bui    there    is   a    fundamental    difference    between   the 

character  of  middle-class  dominance  and  that  of  the 
landowner.  Not  only  does  the  former  cast  its  net  far 
more  widely.  It  was  a  dominance  which  came  in  the  name 
of    freedom.      'That     is,    perhaps,    more    immediately    ob- 

vious  in  the  case  of  Prance  and  England,  though  no  one 

who  examines  the  arguments  for  the  repeal  of  the  Test 

and   Corporation   Acts  and   for  political   reform,  can   inis- 

11-  Tin  i  .  I  think,  the  main  error  <>f  Mr.  u.  n.  Gretton'i  interest- 
big   itndy,   lli>    Middli    CUui,     It  mistakes  means  for  ends. 


ADMINISTRATIVE    AREAS  :»:; 

take  tin-  strength  of  thai  sentimenl  of  freedom  in  Eng- 
land   al>o.       It    was    1 1 1 «  i - •  1  \    liccaiiM'    tin-    privihgts    of    tin- 

(uu  ten  rigime  were  so  much  less  obvioui  in  England  than 
in  Prance,  bo  much  less  narrowly  conceived  and  firmly 
buttressed)  thai  the  French  Revolution  took  ■  form  <» 
much  more  violent  and  dramatic.  But,  both  in  England 
and  Prance,  flu-  content  of  social  structure  failed  to 
adjust  itself  to  older  forms.  Private  good  had  become 
identified  with  public  good  to  an  extent  no  longer  to  be 
borne.     It   is  unnecessary  to  attribute  that  disharmony 

to  careful  selfishness;  rather  is  it  due  simply  to  an  in- 
ability of  adjustment  to  conditions  which  had  changi  I 
so  slowly  as  to  leave  their  extent  unrealized  by  any  Bave 
tht   acutesi  mind-. 

It   is  that  slowness  of  change  which  distinguishes   in 

England  the  control  of  the  squirearchy  from  the  control 
of  the  middle-class.  An  agricultural  civilization  is  neces- 
sarily   less    progressive    than    an    industrial.      Its    wants 

are  fewer  and  it  has,  accordingly,  fewer  and  less  disturb- 
ing ideas.  The  attainment  to  power  of  the  middle  class 
expressed  the  replacement  of  agriculture  by  industry  as 
the  type  of  English  civilization.  Not  only  did  the  wants 
of  men  grow  vastly  greater,  but  the  means  of  supplying 

them,  mostly  through  the  application  of  science  to  indus- 
trial enterprise,  grew  vastly  greater  also.  The  result 
was    to   create   an   environment    which    changes    with    ■ 

rapidity  that  goes  unnoticed  unless  we  view  it  in  his- 
torical perspective.  Change,  of  course,  products  its 
penalties,  and  a  class  which  proves  incapable  of  suffi- 
cient adaptation  is  bound  to  suffer  loss  of  its  power. 
It    is    in     Prance,    again,    that     such     incapacity    is    most 

clearly  visible;  but  in  every  country,  at  some  period, 
the  same  phenomenon  is  visible.     The  Southern  cotton*- 


iu  ADMINISTRATIS  E    AREAS 

planter  of  America,  for  instance,  who  held  sway  until 
l  s(>o,  was  unable  to  comprehend  the  industrial  revolu- 
tion canted  by  the  immense  development  in  the  meam 
of  transportation,  and  the  consequence  was  his  rebellion 
against,  and  defeat  a1  the  hands  of,  the  iuw  social  order 

that    Cam     Ulto   bi  ing.       What    is    not    less    noticeable    than 

the  change  in  personnel  is  the  redistribution  in  property 
that   almost   invariably  accompaniei  it.     The   readjust 

in.  nt  of  u.altli  is,  indeed,  the  inevitable  mark  of  change 
in  social  illations;  for  ire  have  as  y(  t  no  historic  instance 
of  a  poor  <la>s  exercising  power  but  subsidizing  the 
wealthy  whom  it  has  supplanted.  These  changes  have 
come  more  rapidly  since  1760  simply  because  the  environ- 
mental  changes  have  been  more  rapid.     Almost  always 

it  is  a  broadening  of  the  base  of  power  that  result-. 
Almost  always,  in  addition,  that  growth  in  base  is  symp- 
tomatic of  an  increase  of  freedom. 

This  aew  federalism  which,  as  we  have  seen,  is  slowly 
reaching  the  Btage  of  articulate  utterance  is  perhaps  the 

herald  of  a  similar  change  of  this  kind.  It  is  at  least 
noteworthy  that  the  emphasis  of  its  advocates  il  laid 
upon  the  additional  freedom  it  can  confer.  Nor  can 
One    mistake    the    fact    that    the    accusations    levelled    by 

it  at  the  middle-class  partake  in  general  character  of  the 

typical  counts  of  accusation  against  a  clav>  of  which  tin' 
domination  is  beginning  to  disintegrate.  It  is  pointed 
out  that  the  worker  is  unfree  in  his  factory  exactly  as  it 
was  in  ltt.'>"2  pointed  out  that  the  manufacturing  of 
Manchester  lacks  the  essential  symbol  of  freedom;  and 
if  we  sought    to  explain   the   reason  why   the   insistence   is 

industrial    rather   than   political    it    would   be   necessary 

to    trace    the    history    of   a    political    thought    which    go. 
hack    on    one    side,    to    the    failure    of    chartism,    ami,    on 


ADMINISTRATE  I       \UI.\S 

the   other,    to    the   doctrines    of    Hodgskin    and    his    all 
which    Marx    made    the    coinmori    p  ion    of    th<     Labor 

movt  ■inent.11,1  That  I6IIM  «>t  crampi  <1  impulses  which  seek 
the  channels  of  larger   movement    is     <  >  n,   almost    equally, 

in  the  .shift  in  the  burden  of  taxation.  The  graduated 
income  tax,  the  taxation  of  land  values,  the  enormoui 
increase  in  death-duties,  the  vague  bui  vita]  tense  thai 
the  cost  of  social  improvement  musi  be  borne  by  the 

who   can   afford    to    purchase   luxuries — -all    these   ha\e   a 

significance  no  man  may  mistake.  Even  the  genera]  di- 
rection   of   social    policy    contributes    its   quotum    to   such 

an    interpretation.     To    make    freely    accessible    to    all 

what    was  before  ■   matter  of  hard  effort    and   careful 

purchase  is  B  denial  of  the  fundamental  axiom  of  the 
capitalist    state.      The   idea   that    poverty  was   the  exptf 

sion  of  sin,  probably  inherited  from  the  Non-conformis1 

relation  to  trade,1"  is  an  idea  to  which  only  a  few  of 
the  more  ardent  and  ancient  individualists  now  cling. 
M-  isures  like  Workmen's  Compensation,  the  new  int. 
pretation  put  Upon  vicarious  liability,111'  all  point  in  the 
same  direction.  They  mean,  at  bottom,  that  if  the  busi- 
ness man  has  the  profits  of  industry,  he  must  pay  the 
cost  of  the  state-life  in  part  return.  And  the  cost  i>  of 
a   state  life   that  grows   ever   wider   and  more  complex. 

It  may  be  said  that  there  are  men  in  the  business  world 
who  realize  all  this  and  that  they  are  for  nothing  more 
anxious  than   to  work  out   an  amicable  basis  of   relation- 

111  Cf.   Prof.   POKWelTfl  Well-known   introduction   to  thfl  translation 

of  Afenger'a  Rigid  to  the  Whob   Prodmet   of  Labour, 

IH  As  is  pointed  out  by  Professor  I.cvv  in  his  Economic 
XAbi  rulixv).      Cf.     mv     Political     Thought     from     L<>cki     to     />'»  nlfuim, 

Ch,  «. 

Hi  Cf.  my  paper  in  the   Yoh    Law  Journal  for   November,  1916. 


M  ADMINISTRATIVE     \ki   US 

.ship  with  labor.11      Then    ii  undoubtedly    tome  tmtli  in 

such         rtimiN;  Imt  of  tin    business  %v * » i*  1  < I  in  general  it 

h   not    i\Mi    remotely    aocurab        (  apitnl    shows    nowhere, 

on  anv   Urge   scale,  a  desire   to  abdicate   from   its  control; 

rather  la  its  effort,  bj  the  highway  <>f  compensated  na- 
tionalization i<>  '  icape  tin  tragedj  that  might  result  from 

anv  iride8pread  industrial  disruption.  It  1-  -till  widely 
true,  aa  Mr.  and  Mis.  Webb  wrote  twenty  yean  ago/11 

that  "to  the  brain-working  captain  of  industry,  main- 
taining himself  on  thousands  a  year,  the  manual  working 
wage-earner    seems    to    belong    to    another    BpecieS,    having 

mental    faculties   and   bodily   needs   altogether   different 

from  his  own."'  The  familiar  plea  of  the  business  mm 
that  he  will  manage  his  factory  in  his  own  wav  is  the 
expression     of     that     sense.       Hut     there     lias     everywhere 

grown  up  the  belief  that  the  full  fruition  of  the  demo- 
cratic state  demands  that  the  conditions  of  production 
be    determined    by    the    democratic    cooperation    of    its 

agents.      In    the   long    run    that    is    fatal    to    capitalism    in 

its  present  form.  We  shall  not  continue  forever  to  have 
industry  in  that  bureaucratic  tradition  where,  as  ha-  been 

admirably  said,"  its  habit-  of  mind  are  "nourished  upon 
a  h»  lief  that  everybody  in  an  office  except  the  head  of 
it    is    bo   stupid    that    the  only   way   to  get    businesfl   don.    i> 

to  reduce  *\*vy  problem  to  a  few  simple  formulae  and 

irisi-t  that  every  case  is  brought  under  them.'"  It  is 
coming  to  be  seen  quite  clearly  that  the  traditions  of 
l   ipitalism  are  historic  categories  like  any  other;  and   no 

lie  Ai  Mr.  W,  I..  Hlchens,  f"r  example,  in  hli  Bomt  Probltmt  of 

Mo'lirn   Industry,   the    Witt    lrehirr    for    I4»l 7. 

iir  IwhiMtrvii  DfaoenMjf  (<■(].  of  1902),  p.  821. 
m  n  admirable  article,  "Tfamghta  on  Bureaucracy,*1  in  the 

London  Tim**  Educational  8mppl$m$M  for  June  20,  1918. 


ADMINISTRATIVE    AREAS  0*1 

one  can  read  the  debate*  on  tin-  tenth  clause  of  the  Edu- 
cation  Hill  of   I'.Hs       without    realizing  that    thei    arc 

outworn.      A    business    that    i  n » i  - 1  ->   on   child    lahor    H    the 

condition  <>f  iN  existence  li  limply  parasitic  upon  the 
national  life.  No  one  denies  that]  however  ire  construct 
the  state,  some  form  of  organizing  power  will  l>«  neces- 
sary. What  is  coming  more  and  more  to  be  denied  is 
1 1 1 « -  belief  that,  ,^  in  modern  industry,  thai  power  must 
be  clothed  in  oligarchic  garb.  The  modern  business  man, 
amid  many  high  qualities,  has  thought  bo  much  in  terms 
of  money,  thai  tin*  numerous  and  interlacing  social 
interests,  upon  which  the  equilibrium  which  supports  him 
so  largely  depends,  have  in  great  pari  escaped  his  notice. 

What,  largely,  has  escaped  his  notice  is  the  political 
significance  of  trade-union  structure.  In  a  rudimentary 
waj  it  i>  coming  more  and  more  to  assume  all  the  typical 
characteristics  of  ■  state.  It  is  developing  organs  of 
reasoned  government.     It  is  becoming  experl  in  the  proc- 

tes  of  which  Bpecial  knowledge  was  originally  supposed 
to  be  the  prerogative  of  the  man  of  business.  It  has 
worked  out  s  view  of  life  which  achieves  an  ever-greater 
political  influence.  It  has  passed,  as  has  been  pointed 
out,  the  stage  where  its  influence  was  confined  to  hours 

and  wages  and   more  and  more  Incomes  concerned   for  the 

spiritual  freedom  of  its  constituents.  It  would,  of  course, 
be  absurd  to  claim  thai  there  is  any  widespread  con- 
sciousness of  the  details  of  this  process  in  the  trade  union 

world;  like  every  greal  movement,  whal  we  *1  work 
is  the  leaven  of  an  eager  minority.  Hut  as  it  becomes 
every  day  more  obvious  that    the  hold  of  the  business 

1 J  =-»  Cf.  The  report  of  tin-  debate  on  tin-,  the  Child-Labor  clause 
■ — ami  tin-  eoDcessloofl  extracted  from  Mr.  Pliher  in  the  Timtt  H<iu- 

rudnnal   Stiffil,  no  nt    for   Jum-    18,    I^IM. 


M  AD.MIMSTUATIVK     AULAS 

theory  of  life  upon  thr  state  is  weakening,  so  dors  it  alio 

become  more  clear  that  the  trade-unions  are  becoming 
the  categories  Into  which  the  itmcture  of  capitalism  may 
be  absorbed.  Wt  do  not,  of  course,  know  the  time  Mich 
evolution  \sill  take.  \\ '••  can,  also,  b<  reri  certain  thai 
the  propheciee  of  iti  character  will  all,  in  some  degn 

DC    uusfaktii.       What     w e    do     know     If     that     a     capitalist 

state  has  failed  to  specialize  in  certain  final  human  im- 

puls4  |,  and  that    the  trade  unions  are  organizing  a  means 

to  their  satisfaction.  We  can  see,  too,  hoi  the  effort 
of  a  government  which  is  not  predominantly  trade- 
unionist  in  sympathy  unconsciously  hastens  that  evolu- 
tion by  its  attempt,  however  small  in  scope,  to  find  a 
representative  government  for  industry.  For  that  is 
clearly  tin-  admission   that   the  oligarchical   control   of 

industry  has  failed.  It  is  the  provision  of  a  mechanism 
which,  wisely  used,  may  well  serve  as  the  vehicle  of  transi- 
tion to  self  government  in  industry.  The  whole  point 
Seems  to  he  that  the  complexity  of  the  structure  of  an 
industrial  state  is  beyond  the  grasp  of  a  mind,  like  the 
capitalist  mind,  which  mainly  is  specialized  in  the  direc- 
tion of  money-making.  For  that  direction  is  becoming 
not  merely  less  important,  but,  within  the  framework  of 
Capitalism  there  lias  developed  another  type  of  mind 
which  has  Specialized  in  the  directions  in  which  its  fore- 
runner was  most   notably  a  failure. 

It    is   difficult,    in    such   an   aspect,   not   to   believe   that 

trade-unionism  is  destined  to  absorb  the  directive  ability 

that,    undoubtedly,    capitalism    can    furnish,    and    turn    it 

to    its   own   purposes.     That    prospect    has   become  the 

more  likely  SJ  a  result  of  the  experience  of  the  last  four 
years.  The  democratic  forces  of  civilization  have  been 
put  to  the  test  of  conflict  against  an  autocratic  system; 


ADMINISTRATIVE    AREAS  99 

and    it    is   now    indubitable    that    they    will    survive.      But 
they    have    not    withstood    the   shock    without    .serious   and 

ircbing  confusion.  Pew  thingi  have  been  more  obvioui 
than  tin-  inability  of  tin-  capitalist  structure,  in  it -»  pre- 
war   form,    to    meet     the    national    need.      It     ha>    had    to 

receive  assistance  from  tin-  state*     It  has  had  to  he  con- 
trolled l>v  the  state  in  the  interests  of  national  safety. 

It    has    had    to    ask    trade-unionism    for    the   surrender    of 
those    safeguards    by    which,    in     the    past,    an    adequate 

minimum  of  civilized  life  could   alone  he   preserved   for 

the  workers.      The  only   institutions   which,   in   the   course 
of  war,  have  worked  at   all   well   ha\e  been   those,   at    least 

in  industryf  of  democratic  tendency.  Governmental  con- 
trol has  been  an  unsatisfactory  expedient.  The  abdica- 
tion of  Parliament  has  made  obvious  the  utter  insuffi- 
ciency, for  human  needs,  of  a  bureaucratic  system.  The 
restoration  of  industrial  conditions,  at  the  close  of  war, 
can  only  be  made  upon  the  basis  of  returning  within  their 
basic  trades,  a  large  measure  of  popular  supervision. 
Kvervthing,  in  fact,  has  tended  to  emphasize  the  human 
factor  in  industry  at  the  expense  of  the  money-making 
factor.  The  sole  condition  of  industrial  peace  was  the 
acceptance  of  this  fact  as  a  starting  point.  Labor  was 
led,  from  this,  to  the  formulation  of  a  policy  which  go 
down  to  the  foundations  of  the  state.  What,  at  the 
moment,  has  clearly  emerged,  is  a  two-fold  novelty  of 
outlook.  On  the  one  hand  it  has  become  evidenl  that 
the-  state  must  dictate  to  industry  certain  minimum  terms 
upon  which  alone  it  can  be  conducted.  Business,  on  the 
other,  is  to  be  transformed  from  a  chaotic  autocracy 
into,  at  least  in  certain  aspects,  a  federal  and  represen- 
tative system. 

Such,  at  least,  seems  the  alternative  to  revolution,  but 


LOO  ADBflNISTKATIN  I.     \KI..\s 

it  h  to  !»«■  noted  ih.it  it  in  the  minimum  alternative.    The 

war    lias    t<>    In     |>aid    for,    ami    it    is    alnad\    Incoming   oh 
\ioiis  that    whatever   fonill  tin    |»a\iu.  nt.   takes,  it    is  hound 

ti»   itrike  at    the   rooti  <»f   the   economic   barrier   which 

tcs   class    from   class.      The    debt,   Certainly,   cannot 

be  repudiated,     It  its  payment  take  the  form  of  a  capital 

levy     tin     industrial     power    in    the    hands    of    governmenl 
prill    at     hast     nC    with    that     of    capitalism    itself;    and    it 

will   I"    equal   at    a   time  when   tin-  electorate   his   |>ecn 
transformed    beyond   all    past    recognition.     This   latter 

t  ictor,  like  all   such   factors,  is  our  upon   which   ft  u    bopCfl 

.did  only  the  ran  it  certainties  can  he  builded,  Hut  it  is 
universally  agreed  that  the  last  four  years  have  made 
i  return  to  the  economic  status  before  tin-  war  impoi 
sihl.  ;  and  that,  in  itst-lf,  will  change  the  political  system. 
Political  institutions,  indeed,  are  themselves  in  nra\c  need 
of  chang  The  one  institutional  benefit  derived  by  ^r«>v- 
ernmenl  from  tin-  war  is  the  prime  minister's  secretariat, 
which  can  hardly  he  called  fundamental.13  The  attempted 
division  between  policy  and  administration  has  proved 
as  barren  in  practice  as  is  every  such  attempt  at  a 
separation  of  powers.1  The  abdication  of  parties  has 
in  Dowise  cleansed  the  atmosphere;  and  ministries  <»f  all 
the  talents  have  only  borne  witness  to  the  truth  of 
Disraeli's  famous  dictum  that  England  does  not  love 
ditions.  A  glimpse  of  the  possibilities  <>f  education, 
indeed,  we  have  caught.  \\ '«•  shall  no  longer,  in  .Mr. 
Fisher's  admirable  phrase,  send  out  the  generations 
chartless  upon  an  unending  ocean.     \\Y  have  seen,  too, 

120   It   u.is  t((l   by    Mr.  Graham   Wallai  l><t<>r<-  \\u-  war:  see 

I )  ■  i  p.  29 

I  t    m\  note  iii   //<<    \  R  pubUe,   lags  I  25,  ItlT. 

/  /  xeationdk  >><  •  ekt  t,  j>  I  I 


ADMINISTRATIVE     IRE  \8  101 

tin  peal  need  for  plan  in  the  itate,  the  folly  of  attempting 

to  go  forward  by  waiting  upon  tin    crises  thai   may   occur; 

Inland,  .it   least,  will  not  hav(    lacrificed  herself  in  rain 
if   she    has   given    point    to    that    stupidity.     \\ .     hs 
h  irned,  also,  thai  then   is,  in  any  public  u  rvi<         point 
in   official   staffs   beyond   winch   mere   inert         b   incom 
patible  with  Liberalism.    Governmenl  maj   h«    strong,  but 
if  it  is  to  be  human  if   cannot   have  th<    tentacles  of  an 
octopus.     The  ralue,  also,  of  publicity  has  been  demon 
strated  by  the  very  danger  of  its  opposite,     a  demo 
racy,  as  we  know  by  hard  experience,  cannot   hope  to 
prosper  unless   its   fundamental   fights  arc  contested   in 
the  I  [ouse  of  Commons. 

So  much,  at  least,  is  gain  even  though  we  have  paid 
a  heavy  price  for  it.  Yet,  as  our  knowledge  and  the 
facts  we  encounter  converge,  they  bring  out  the  fir-t 
question  of  all  questions  in  political  life.  We  have  to 
decide  what  we  mean  the  state  to  do  before  w<  pro 
nounce  that  what  it  docs  is  good.  If  its  object  is  the 
preservation  of  individuality,  in  so  far  as  its  specialism 
contributes  to  the  public  good,  our  present  system  stands 
largely   self-condemned   by    the   mere   description   of   it. 

Nor  i>  there  any  reason  in  the  world  wh\  we  should 
expect  it  to  be  otherwise.  The  path  of  history  is  strewn 
with   the  wreck  of   social    BVStems;   there   is   no   cause   why 

our  own  should  be  the  sole  exception.     There  is  perhaps 

Cause  rather  for  congratulation   than   regret    in  the  vision 

of  its  disappearance.     It  passes  because  it  fails  to  fulfil 

the  more  generous  aspirations  of  a  new  tim  We  seek 
today    the    waVS    and    means    whereby    we    can     renew     in 

men  their  interest   in  the  state  which  so  greatly  weaves 

itself   into   the   staff  of   their   li\<  "War,"   said    Burke 


102  ADMINISTRATIVE    AREAS 

in  one  of  his  flash*  s  of  incomparable  Wisdom,     '  "war  i>  I 

situation    which    sets    in    its    full    lijjht     the    \alue    of    t  he 

nts    of    tin      people.91       What     it     litis     revealed    to    US    [f 

the  riches  thai  have  gone  unused.  What  it  has  most 
strikingly  ihown  ii  the  importance  of  the  people.     And 

with    its    realization    there    must    he,    as    he    said,    the    end 

of  that  "interior  ministry*1  of  prhich  he  skilfully  por- 
trayed   the   danger.      That,    ahove    all,    at    which    we    aim 

is  the  representation  in  the  itracture  of  the  state  of  all 
that  makes  for  its  enrichment,  Bui  we  do  not  believe  in 
the  adequacy  of  a  representation  without    power.     rVe 

do  not  believe  thai  ■  power  can  be  other  than  futile  which 
is  not  directly  related  to  the  immediate  business  of  men. 

We    believe,    as    Burke    believed,    that    the    "heart    of    the 

citizen  is  ■  perennial  spring  of  energy  to  the  state.*1 
Hut  energy  is  impossible  when  it  is  deprived  of  liberty 

and  liberty  is  impossible  save  where  there  is  a  division 
of  power.  So  long  as  the  offices  of  men  do  not  make 
their  souls  erect  and  their  minds  intelligent  we  cannot 
RSSeri  that  they  have  been  given  the  credit  of  their  hu- 
manity. That  has  been,  in  the  past,  our  failure;  it  is 
to  its  repair  we  must   bend  our  efTort. 

m  Thoughts  ,,n  the  Present  Discontents  (Works,  World's  Classics 
«(!.,  Vol   II,  p.  39). 


THE    RESPONSIBILITY    OF   THE 
STATE    IX    ENGLAND4 


The  British  Crown  coven  a  multitude  of  rins.  "The 
Kiii^r, n  says  Blackstone  in  a  famous  sentence,1  "is  not 
only  incapable  of  doing  wrong,  but  even  of  thinking 
wrong,  he  can  never  mean  to  do  an  improper  thing;  in 
him  is  no  folly  or  weakness."     A  long  history  lies  behind 

those  amazing  words;  and   if,  as  to   Newman,1   they    seem 

rather  the  occasion  for  irony  than  for  serious  political 
speculation,  that  is  perhaps  because  their  legal  substance 
would  have  destroyed  the  argument  he  was  anxious  to 
make.  In  England,  that  vast  abstraction  we  call  the 
state  has,  at  least  in  theory,  no  shadow  even  of  existem •• 
government,  in  the  strictness  of  law,  is  a  complex  lystem 

of  royal  acta  based,  for  the  most  part,  upon  the  advice 

and    consent    of    the    Houses    of    Parliament.      \W    tech- 
nically State  our  theory  of  politics  in  terms  of  an  entity 

which   has  dignified  influence  without   executive   power. 

The   King  can  do   no  wrong  partly  because,  at    a    remote 

period  of  history,  the  place  where  alone  the  doing  of 
wrong  could  best  be  righted  was  his  place,  and  had  won 

*   Reprinted   from  the   Harvard   La:.-   l!>vi>:,\   Vol.   \\\II.   No.  5. 

i  l  Oam*  1818  ecL,  204, 

2   The   I'rettnt    Pusifmn  of  OttkoUet   in   Enaland,  27   f. 

103 


L04      RESPONSIBILITY    OF    THE    STATE 

preeminence  onlj  after  a  long  struggle  prith  the  courts 
of  lesser  lords,  The  King's  courts  became  the  supreme 
resort  of  justice  simply  because,  in  Ins  bands,  thai  com- 
modity \s . i ->  more  purely  wrought  and  finely  fashioned 
than  elsewhere  ;  and  since  it    Ii  clearly  unintelligent    to 

make  a   man  judge   in   his  OWH   cause,  since,  moreover,  the 

royal  judges  do  not,  In  legal  fact,  conceal  the  royal 
|ne-.  nee,  there    teems  to  have  been  no  period  of  history 

in    \v  1 1 ill )    the    King    could    be    sued    in    the    courts    of    the 

dm. 

It  is  difficult  to  say  at  what  precise  period  this  non- 
Buability  of  the  Crown  passed  into  infallibility.  The 
Tudor  despotism  seems  to  have  been  that  critical  period 

of  transition   when  learned   lawyers  like   Plowden   will   talk 

wh.it     Maitland    has    aptly    termed    "metaphysiological 

iinie.iiM  ;"  and  the  aggressive  Coke  will  dispatch  the 
Crown  into  a  corporation  sole  of  a  kind  but  rarely 
known  to  previous  English  history.4  Not,  indeed,  that 
men  are  not  troubled  by  the  consequences  of  that  dual 
personality  the  Tudor  lawyers  called  into  being.  Thomas 
Smith  did  not  write  aimlessly  of  an  English  common- 
wealth; '■    and    that   public    which   the   royal    burglary    of 

1072  forced   into  responsibility   for  the  National   Debt 

shows,  eharly  enough,  that  the  fusion  of  Crown  and  state 
IS  not  yet  complete.*  liven  in  the  nineteenth  century 
Acts  of  Parliament  will  be  necessary  to  show  that  behind 
the  robes  of  a  queen  can  be  discerned  the  desires  of  a 
woman.7 

',  C,,lhet,,l   Papers,  219. 
<   fhi,/  .  _>U    16. 

/'■;/..  21 
•    i  m.mmiiI.iv.  Hirtory  of  England,  Everyman's  edition,  170. 
I  28  B  M  Vict  c  •::  (1862);  ■><>  B  W  Vfct  c.  fil   (1878). 


RESPONSIBILITY    OF    THE    STATE       105 

It  is  probable  thai  tin1  reemergence  of  the  dogma  of 
divini  right  exercised  a  potent  influence  on  this  develop- 
ment* Certainty  men  could  not  bave  encountered  the 
speech  of  .lames  and  his  eager  adherents,  or  the  Logic  of 
thai  continental  absolutism  which  is  merely  summarized 
in  Bossuet,  without  being  affected  bj  them.  Even  when 
the  Revolution  of  1688  destroys  its  factual  basis,  it  has 
become  capable  of  transmutation  into  s  working  hypothe- 
sis of  government;  and  anyone  can  Bee  thai  Blackstone, 
irho  besi  sums  up  the  political  evolution  of*  this  creative 
period,  writes  "Cnnui"  where  the  modern  political  phil- 
osopher would  use  the  term  "State."  The  vague  binter 
land  of  ancient  prerogative  went  also,  doubtless,  to  show 
thai  the  Crown  is  a  thing  apart.  The  privilege  of  the 
King's  household  leaped  to  the  eve-.  Ili>  freedom  from 
unpleasant  proximity  to  arrest  declared  th<'  sacred  char- 
acter with  which  he  was  invested.''  "The  most  high  and 
absolute  power  of  the  nalme  of  England/'  says  Sir 
Thomas  Smith,  not  [ess  learned,  he  it  remembered,  in  the 
mysteries  of  law  than  of  politics,10  "con>ist(  fh  in  the 
Parliament";  but  even  so  noteworthy  an  assembly  cannot 
bind  the  Crown   by   its   statutes.11       Indeed,  its  position   is 

even  more  privileged  since  the  down,  by  prerogative, 
takes  advantage  of  statute.19  Fictions11  and  estoppel  u 
pale  into  insignificance  before  the  overmastering  power  of 

8  2  Co.   Inst.  681,    I   ibid.,  24;   Rex  v.   Poster,  _'  Taunt    166 
(  1809);  Res  v.  RfouKon,  2  Keb.  8. 
;  HI.  Com.  289. 

io  l>>   i\<  pubUoa  .1  ii'ilnrmn.  c(!.    Uston,  Is 
u  Magdalen  College  Case,  n  ('<».  Rep,  <i<i;  Sbefield  v.  RatclnYe, 
Hoi..  884. 

'  =   Hex  r.  Cruise,  21   (  h.  (\r>   (1802). 
i     Anon.,  Jenk.  287   (  mi 8). 
u  Coke's  Case,  (i«,(ii).  _m 


106      RESPONSIBILITY    OF   THE    STATE 

its    presem        Laches       ami    prescription11    l<>-<-    their 

mi  ailing  when  t  li»  Ciown  has  become  desirous  of  action. 
It   choON  I  itl  OWn  court  ;  '     it    mav,  laVC  where,  of  its  own 

grace,  it   lias  otherwise  determined,     avoid  the  payment 

of  OOSts*.1(       Here,  assuredly,  is  a  power  that  does  not   n- 

the  sanction  of  collective  terminology  that  nun  mav  recog 
ni/c  its  st  rengl  h. 

Prerogative  such  as  this  would  In-  intolerable  did  the 

Crown  act   as  in  tlnorv   it    has  warrant.       lint    the   English 

have  a  genius  for  illogical  mitigation;  and  the  history  of 
ministerial  responsibility  enshrines  not   the  leasl  splendid 

ntrihution  we  made  to  the  tluorv  of  representative  gov- 
ernment.     The  seventeenth  century  in  I  airland  makes  defi- 

nite  a  practice  which,  if  irregular  in  its  operation,  can 

\.|  trace  its  pedigree  hack  to  the  dismissal  of  Lon^- 
champ  in  1190;""  the  execution  of  Strafford  and  the 
impeachment  of  Danbv  arc  onlv  the  two  culminating 
peaks    of    its    development.     What    ministerial    respon- 

sihilit  v  has  come  to  mean  is  that  the  King's  ministers  shall 
make  answer  for  the  advice  they  proffer  and  the  acts 
which    How    therefrom;    and    in    the    period    in    which    the 

royal  power  is  delegated,  for  practical  purposes,  to  the 
Cabinet  ire  have  herein  a  valuable  safeguard  againsl   its 

arhit  rarv  abu84  . 

Yet  minisb  rs  are  not   the  Crown.      What   tin  v  urge  and 

do  does  not,  however  politically  unwise  or  legally  erro- 
neous, involve  a  stain  upon  the  perfection  of  its  character. 
It    mav   he   true  that    when    they  order   action,   the   Crown 

is  Co.  Litt..  .".7  I.. 

i«  Wheatoo  v.  Maple  [ikm],  3  Ch.  is. 

11    1  Co.  Inst.  17;  HI.  Com.  257. 

is  28  ft  24  Vict.  c.  84. 

if  Johnson  7\   Hex   [  L904],  A.  ('.  B17. 

20  Btobbs,  Conitit.  11     '  ,  >i  cd.,  I,  5M«). 


RESPONSIBILITY    OF    THE    STATE       107 

has,  in  substance,  been  brought  into  play;  but  tin  n 
sponsibilitv  for  their  acts  remains  their  own  .since  the 
King  ^an  do  no  wrong.  The  law  knows  no  such  thing 
a>  the  government.  When  the  King's  ministers  find  their 
u.iv  into  the  courts  it  is  still  a  personal  responsibility 
which  they  bear.  Statutory  exceptions  apart,  no  such 
action  need  cause  a  moment's  qualms  to  the  grim  guard- 
ians of  the  royal  treasury;  the  courts1  decision  does  not 
involve  s  raid  upon  the  exchequer. 

In  such  an  aspect,  state  responsibility,  in  the  sense  in 
which  continental  theorists  use  thai  term,  remains  un- 
known.    The  state  cannot  be  sued,  because  there  is  no 

state  to  BUe.  There  I8  still  no  more  than  a  Crown,  which 
hides   its   imperfections  beneath   the   cloak  of  an   assumed 

infallibility.  The  Crown  is  irresponsible  save  where,  of 
grace,  it  relaxes  so  Btringent  an  attitude.  Foreign 
Writers  of  distinction  have  thus  found  it  easy  to  doubt 
whether  the  protection  the  English  constitutional  system 
affords  to  its  citizens  is  in  fact  as  great  as  the  formal 

claims  of   the  "rule  of   law"   would    BUggest.*1      For  while 

it  is  clear  enough  that  the  broad  meaning  of  this  prin- 
ciple is  the  subjection  of  every  official  to  definite  and 
certain    rules,    in    the   nature   of    things    that    which   gives 

the  official  his  meaning  and  is  equivalent  in  fact  to  the 

incorporation  of  the  people  as  a  whole,  escapes  the  cate- 
gories of  law. 

Nor  is  this  all.  Careful  analysis  of  the  responsibility 
of  a  public  servant  suggests  that  the  rule  of  law  means 
leSS  than  may  at  first  Bight  appear.  There  has  been 
Unconsciously  evolved  a  doctrine  of  capacities  which  is 
in    its    substance    hardly    less    mystical     than     Plowden's 

speculations  about  the  kingly  person.     Certain  protec- 

21   |f,  Leroy  in  fiifrfffl  lint r,  (it  n.*,  line  scries,  3(J8. 


106      RESPONSIBILITY    OF    THE    STATE 

tioilfl    it-    off i*r I'd    to   tin-    King's    MTvants    which   go    far    to 

placing  them  in  a  position  more  privileged  than  the  theory 

underlying  the   rule  of   law    would    leem    to   warrant.       The 

growth)  moreover^  of  administrative  law  In  the  special 
evolution  characteristic  <>f  the  last  fen  yean  is  putting 
the  official  in  ■  position  where  it  becomes  always  difficult 
and  often  impossible  For  the  courti  to  examine  ln>  acts. 
Wt  have  nothing  like  the  droit  admimstratif  of  the  Con- 
tinent of  Europe;  f>ut  ire  are  nevertheless  weaving  its 
obvioui  implications  into  the  general  system  of  our  law. 
It  i>  easv  to  understand  that  in  the  day  a  when  the 
function!  of  government  were  negative  rather  than  posi 
t i\ »  in  characters  the  consequences  of  its  irresponsibility 
should  hardly  have  pressed  themselves  upon  the  minds  of 

nun.      For   it    is   important   to  have  constantly   before  us 

the  fact  that  the  essential  problem  is  the  responsibility 
of  government.     Our  English  state  finds  its  working  em- 

bodimenl   in  the  Crown;  but  if  we  choose  to  look  beneath 

that  noble  ornament  we  shall  Bee  vast  government  offices 

full   of   human,   and,   therefore,   fallible  men.      We   choose 

to  ignore  them;  or  rather  we  know  them  only  to  make 

them  pay  for  errors  they  have  not  committed  on  their 
own  behalf.  So  do  we  offer  vicarious  victims  for  a  state 
that   hides  itself  beneath  an  obsolete  prerogative. 

Public   money   i».  of  course,  a    trust;  and   it    is   perhaps 

this    that    has   involved    the    retention,   in    relation    to    the 

modern  state,  of  a  notion  the  antiquarian  character  of 

which  is  obvious  the  moment  the  real  machinery  of  gov- 
ernment is  substituted  for  the  clumsy  fiction  of  the  Crown. 
Public  money  is  B  trust;  and  thus  it  was  that  until  the 
nineteenth  century  things  less  than  the  state,  like  char- 
itable  institution-,   were   beyond   liability    for    the   acts   of 


/ 


RESPONSIBILITY    OF    THE    STATE      109 

their  servants.     Bui  Mer$ey  Dockt  Tru$tte$  \.  Gibb 

emphasized,   half   a    century    ago,    that    defective   adininis- 

t  ration  in  any  enterprise  n«»t  conducted  by  *h<-  Crown 
must  entail  its  just  and  natural  consequence.  It  is  hut 
obvious  justice  that  if  the  public  seek  benefit,  due  care 
must  he  taken  in  the  process  not  to  harm  the  Lesser  in- 
terests therein  encountered.  It  is  a  matter  not  less  «>f 
political   than  of  economic  experience  thai   the  enfon 

nicnt  of  liability  for  fault,  often,  indeed,  without  it,  is 
the  only  effective  means  to  this  end.  Where  ue  refuse 
to    take   the   state   for   what    it    in    fait    is,   all    we  do    i>    to 

make  it  superior  to  justice.  Responsibility  on  the  part 
of   the  Crown   does   not    involve   its   degradation;   it    is 

nothing  more  than  the  obvious  principle  that  in  a  human 
so.i.tv  acts  involve  consequences  and  consequences  in- 
volve obligations.  We  are  invested  with  a  network  n\ 
antiquarianism  because  the  conceptions  of  our  public  law 

have  not  so  far  developed  that  they  meet  the  new  facts 
thev  encounter.  We,  in  a  word,  avoid  the  payment  of 
our  due  debtfl  by  a  shamefaced  shrinking  behind  the  kingly 
robe  ffe  have  abstracted  from  the  living  ruler. 

It  is  well  to  analyze  the  meaning  of  responsibility 
before  we  examnie  our  remoteness  from  it.  The  modern 
state  is,  in  the  American  phrase,  nothing  so  much  as  a 
great  public-service  corporation.  It  undertakes  a  vast 
number  of  functions  —  education,  police,  poor-law,  de- 
fense, insurance  against  ill  health  and  unemployment  — 
many    of   which,    it    is    worth    while    to    note,    were,    in    the 

past,  provided  for  by  private  endeavor.  State  acts  are 
performed  by  individuals,  even  though  the  act  is  invested 

with   the   majesty  of  the  Crown:   for   an   abstract    entity 

I..   EL   1   II.  1..  M   ( 188S). 
Cf.  Ladd,  26  Yak  L  J.  LOB  f. 


110       RESPONSIBILITY    OF    THE    STATE 

must  work  through  a^t  nK  and  servant  .  Today  such 
acts   ar<    protected    from    the   normal    con. sequence   of   law. 

Often  enough,  indeed,  the  individual  a^nt  i>  not  -<>  pro- 
tected; if  Ik-  drives  a  mail  van  rcckles>l\  down  the  st  net 
h<  can  1«  sued  as  a  [)rivatc  p<  rton.  Hut  w<  c  innot  pene- 
Urate  through  him  to  the  master  by  irhom  he  i--  employed* 

The  resources  of  tin-  Postmaster-Genera]  air  not  at  our 
disposal  for  the  accidents  that  mav  I"   caused  hv  tin   acts 
of    his    servants.*4         Yet,    in    real    and    literal    fact,    th< 
acts   are   not    a    whit    different    from    those   of   other    men. 

'l'he  Postmaster-General  may  he  the  depositary  of  special 

powers*   hut    that    should    surely    CSSl    upon    him    rather    a 

greater  obligation   than  a   freedom   from   responsibility 

for    their   »  \<  rci^e. 

The  theory  of  responsibility  is,  in  this  regard,  no  more 

than   a    plea    that   realism   he   substituted    in    the    place   of 

fiction.  It  urges  that  when  the  action  of  the  state  en- 
tails a  special  burden  upon  some  individual  or  class  of 
men,  the  public  funds  should  normally  compensate  for 
the  damage  suffered.     Everyone  can  see  that  if  the  state 

took  over  the  railways  it  would  he  unfair  to  refuse  the 
continuance  of  actions  by  those  who  had  on  some  account 
previously  commenced  them;  nor  is  it  less  clear  that  if  a 
postal  van  runs  over  Mi^>  Bainbridge  she  has,  in  pi 
cisely  similar  fashion,  a  claim  that  should  not  go  un- 
answered. There  must,  in  short,  he  payment  for  wrong- 
ful acts;  and  tin-  source  of  those  acts  i^  unimportant. 
We  can,  indeed,  see  that  there  are  reasonable  grounds 

for    certain    exceptions.      Complete    freedom    of    judicial 

expression,  without  any  penalization  of  utterance,  i>  too 
clear  a  need  to  demand  defense.     In  a  less  degree,  a  mem- 
ber   of     Parliament     needs     protection     from     the    normal 
-«  BalabrJafi  p.  Bo itasater^Geacral  [IMS],  1  K.  B.  n«. 


RESPONSIBILITY    OF    THE    STATi:       111 

consequence  <>i  law,  if  be  i^  at  all  fullj  to  perform  hii 
function;  though,  i  \ •  d  hi  n  .  i  Kperi<  doc  luggest  i  the  mine 

of   some   extra   |>a  rliaiiu  nt  arv    nnuis    uli'iihy    tin     memh<  r 

can  l>«-  made  t<>  weigh  his  words,  still,  in  general,  the 
principle  is  clear.  Government  must  pay  where  if  wrongs. 
There  nr<  no  Arguments  againsl  it  save,  on  the  one  hand, 
the  dangerous  thesis  thai  the  state-organs  ire  sbove  Hi*' 
law,  on  the  other,  the  tendency  to  believe  thai  ancient 
dogma  must,  from  its  mere  antiquity,  coincide  with 
modern  need*     Dogmas,  no  less  than  species,  have  their 

natural  evolution;  and  it  may  well  result  in  serious  in- 
justice if  they  linger  on  in  a  condition  of  decay. 

ii 

The  persona]  liability  of  the  Crown  to-day  is,  broadly 
speaking,  not  merely  non-existent  in  law,  hut  unimpor- 
tant also  in  political   fact.      No  Icing  is  Likely,  as  in   Bag 

hot's  classic  illustration,  to  shoot  his  own  Prime  Minister 
through  i\\r  head;  though  the  servants  of  Elizabeth  and 

her  boisterous  father  must   not    seldom  have  stood   in   fear 

of   personal   violence.     The   real   problem   here  concerns 

itself  with  government  departments.  They  are  the  con- 
stitutional organs  of  the  Crown,  and  their  acts  are  bind- 
ing Upon  it.  But  how  are  they  to  he  reached  if  an 
injured  person  deem   that  he  has  suffered  injustice?     The 

law  is  char  upon  this  point  beyond  all  question.  The 
subject  cannot  bring  action  against  the  Crown  because 
th<  Crown  can  do  no  wrong.     A  government  department 

lives  beneath  the  widespread  cloak  of  that  infallibility, 

and    it    cannot,   unless    statute   has   otherwise    provided,   be 

This  will  be  dear  t<»  anyone  irbo  follows  the  questions  and 
sp.tch.s  of  \|r.  Pcmix-rton  Billing  through  the  Parliamentary  De- 
bales  for  1917  and  l<»|s. 


112       RESPONSIBILITY    OF    TIIK    STATK 

toed  in  Ihc  court*.  The  lawj  indeed)  is  thick  with  sfl 
manner  of  lurvivals.  Por  practical  purposes,  the  Elder 
Brethren  of  Trinity  1 1« >u -»  are  under  the  jurisdiction  of 
the  Admiralty  and  the  Board  of  Trad*  .  bul  thej  are, 
in  origin,  ■  private  body,  and  their  acti  thus  render  then 
liable  to  answer  to  the  law,*     So,  too,  for  certain  pur 

posts,   tin    Secretarj   of   Stat*    for   India   in  Council    i>    tin 

successor  of  the  East   India  Company,  and  irherc  the 
purposes  are  concerned  the  courts  vrill  take  cognisant 

of  his  acts;  lnit  if  the  reader  of  Maeaulav  is  tempted 
to  think  thai   ('live  and  Warren  Hastings  did  not   besitat(  , 

on  occasion,  to  perform  sovereign  functions,  be  yd  must 
legallj  remember  thai  the  company  was  not  technically  a 
sovereign  body.  There  is  thus  a  definite  environment 
which  surrounds  each  seeming  exception   to  the  genera] 

rule.  If  their  [s  limitation,  it  is  that  act  of  graot  which 
continental    theorists   have  taught   US    to   deduce    from    the 

inh<  rent  wisdom  of  the  sovereign  power.  Hut  the  ex- 
ceptions are  relatively  few  in  Dumber,  and,  for  the  mosi 

part,    they    cautiously    re>idc    within    the    narrow    field    of 

coni  ract. 

The  broad  result  is,  to  say  the  least,  suggestive.    Until 

1(.M>7,  and  then  only  as  a  result   of  statute,  no  govemmeni 

department  could  he  sued  for  violation  of  the  very  patent 

of  which  the  Crown  itself  is  grantor."  The  acts  of  the 
Lord   Lieutenant    of   Ireland,   even    when    they    involve    tin 

mingly  purposeless  breaking  of  heads  at  a  public  meet- 

2«  Gilbert   V.  Trinity  House,  17  Q.   B.   D.  786   (1886)  {  Cairn   Line  7-. 
Trinity    HOOM    |  1908J,   1    K.   IV  BOfl 

'-'"  JehanL"r  M.  CunetjJ  V.  S.cr.tary  of  State  for  India  in  Council, 

1  I.,  a.  r,  Bomb.  189  (1902). 

HOOdsrjP    t.    Monton.    2    Dick.    652    (1788). 

2»  Cf.   my    dmih&fUf    in   tki     Mn.hrn    Stnf,-.   C\\.    1. 

so  Pcatfeer  r.  Regis*,  o  B.  &  s  891  1 1899). 


RESPONSIBILITY    OF    THE    STATE       118 

ing,  art-  acti  of  state,  and  m  outside  the  purviei  of  the 
court  The  servants  of  the  Crown  owe  no  duty  to 

the  publi<  except  as  statute  may  have  otherwife  pro- 
vided; so  that  even  irhere  ■  rojal  warrant  regulates 
the  pensions  and  pay  of  1 1  u-  army,  the  Secretary  of  State 
for  War  cannot  be  compelled  to  obey  it.  1 1 « -  is  the 
agent  «»i  the  Crown;  and  only  the  Crown  can  pass  upon 
the  degree  to  which  he  has  fulfilled  the  termi  of  his 
a^t'iicv.  Vet,  in  sober  fact,  that  Ifl  to  make  his  actl 
material    for    the    decision    of    his    Colleagues,    and,    in    an 

age  of  collective  cabinet  responsibility,  thus  to  make  him 
judge  in  bis  own  cause.  Sir  Claude  Ifacdonald  may,  as 
Commissioner  for  the  Nigerian  Protectorate,  engage  Mr. 

Dunn  as  consul  for  a  period  of  three  years;  but  if  he 
chooses  to  dismiss  Mr.  Dunn  within  the  specified  limit, 
even  the  question  of  justification  is  beyond  the  com] 
tence  of  the  courts.  '  Nor  will  the  law  inquire  whether 
adequate  examination  has  been  made  before  the  refusal 
of  a  petition  of  right;  the  Home  Secretary's  discretion 

is    ln-rc    BO    absolute    that    the   judge   will    even    hint    to    him 

that  the  oath  of  official  Becrecy  is  jeopardized  when 
he  remarks  thai  he  considered  and  refused  the  petition.*1 
A  captain  of  the  Royal  Navy  may  burn  the  schooner  of 

a    private   citizen    in    the   mistaken    belief    that    she   is   en- 

gaged  in  the  slave  trade,  and  even  if  the  vessel  so  de- 
stroyed were  its  owner's  sol»'  means  of  livelihood,  he  is 
lift  without  remedy  so  far  as  the  Crown  is  concerned.*1 
Neither  Mr,  Heck  nor  Mr.  Bdalji  had  rights  against  the 

3i   Sullivan  r.    Karl   Spencer,   Ir.   Hep.  8  G    L    178   (1S72). 

•c-  c.idirj  v.  I'aimersftoa,  8  B.  ■  B.  278  (1888). 

33     //,„/. 

I    Dunn    :      M  IcdOQSld    (  1897],    1    <}     B.    555. 
■'■'■    I  ruin  v.   Cray.  :!    P    ft    P    686    |  L868). 

a«  ToWn      B  /m  i,  M  C  B.  (a  ■'>  |  L868). 


1U      RESPONSIBILITY    OP    THE    STATE 
Crown  for  l<>"kr  years  of  mistaken  imprisonment.  '     So, 

too,  it  did  im it  assist  Miss  IJainbrid^c  when  a  duly  ac- 
credited .i^« hi  uf  tin  Crown  injured  her  in  his  progress; 

what     was    lift     her    was    a    worthless    n  im-d  v    against     a 

bumble  wage  earner  from  whom  no   recovery  was  pos 
mI»1.-.;h 

It  is  the  realm  of  high  prerogative  thai  we  have  en 
tered ;  and  it  irould  be  perhaps  less  arid  if  it  hut  possessed 
tin-  further  merit  of  logical  arrangement.  Tin-  truth  is 
that  in  its  strictest  rigor  the  system  is  unworkable;  and 
from  ancient  timei  an  effort  has  been  made  to  mitigate 
the  severities  it  involves.  The  origin  of  the  Petition  of 
Right  is  wrapped  in  no  small  obscurity;1  but  its  clear 
meaning  i-s  an  ungracious  effort  to  do  justice  without 
the  admission  of  a  Legal  claim.  Nor  is  the  remedy  at  all 
broad  in  character,  for  the  Crown  is  avaricious  where  to 
show  itself  generous  is  to  compromise  the  Exchequer. 
The  Petition  of  Right  is  limited  to  a  definite  class  of 
cases.     Until  1N74  it  could  be  used  for  the  recovery  of 

some  chattel  or  hereditament  to  which  the  suppliant  laid 
claim;  and  it  was  only  in  that  year  that  the  genius  of 
commercial  understanding  by  which  Lord  Blackburn  was 
distinguished  secured  its  extension  to  the  genera]  field  of 
contract*40  Even  when  judgment  has  been  obtained  no 
execution  can  issue  against  the  Crown.  The  petitioner 
remains  dependent  upon  a  combination  of  goodwill  and 

the   moral    pressure    he   may    hope    to    secure    from    public 

opinion. 

The  matter  is  worth  stating  in  some  little  detail.      "The 

3i    PCH!  ;i   French  attempt  to  remedy  this  defect,  sec  infra. 

88  Bainbridge  v.  PostmastavGeoeral,  twprm, 

3»  (lode.  Petition  of   m.iht,  Ch.   l. 

♦o  Thoi,  EUglna,  L  K.  i<»  Q.  B.  31  (1874). 


RESPONSIBILITY    OF    THE    STATE       L15 

proceeding  bjp  petition  of  right,"  said  Cottenham,  I>.  C.»41 

u(  \i^K  onlv  for  tin-  purpose  of  reconciling  the  dignity  of 

the  Crown  and  tin-  rights  of  the  subject,  ami  to  protect 
the  latter  against  any  injury  arising  from  the  acti  of 

the  former;  bill    it    il   DO   |>art    <>f   its  object    to  cnlar^,    or 

alter  those  rights."     A  later  definition  i-  even  more  pre 

cisc  in  its  limitation^.  "The  onlj  cas<  ifw  laid  Cockburn, 
('.  .1.,'  "in  which  the  petition  of  right  is  open  to  the 
subject  air,  srhere  the  land  or  goods  or  monej  of  ■  iub 
ject  have  found  their  way  into  the  possession  of  the 
Crown,  and  the  purpose  of  the  petition  is  to  obtain  resti 
tntion;  or,  if  restitution  cannot  be  given,  compensation 
in  money;  or  where  the  claim  arises  out  of  contract  as 
for  goods  supplied  to  the  Crown,  or  to  the  public  service. 
It  is  onlv  in  such  cases  that  instances  of  petitions  of 
right  having  been  entertained  are  to  be  found  in  our 
book>."  The  remedy  is  thus  the  obvious  expression  of 
the  needs  of  a  commercial  age.  The  Crown  must  do 
business,  and  it  must  obey  tin-  rules  that  business  men 
have  laid  down  for  their  governance  if  it  desire  effective 
dealings    with    them.     So    leasehold    proper!  demur- 

rage under  a  charter  part  v,"  duties  of  all  kinds  paid 
by  mistake.'  property  extended  by  the  Crown  to  answer 
a  Crown  debt,4'  are  all  cases  in  which  it  is  clear  enough 
that  the  petition  will  lie;  and,  in  various  cognate  din 

«»  Mun.ktun  r.  Attorn,  j  General,  2  Mae.  a  G.   109  (1880). 
a  Feather  v.  Reglna,  0  B.  &  S.  2  ?  ( 18(35). 

•    in  n  Gasman,  i"<  Ch.  n.  W  (I860),  confirmed  in  pail  it  Ch.  D. 
771    (1881). 

m  Yeoman  r.  Hex  [1904],  2  K.  H.   129. 

«   IVrciv.il  v.  EUgina,  :*  H.  B  C  '-'17   (1884)    (probate);  Dickson  r. 

Regina,  n  11.  L  C  i7.->  (1886)  (exd  i  )\  Wmani  v.  Rex,  28  T  L 
H.  7(».r>  (in<»7)   (estate  duties),  arc  raficJenf   Instancei   oi   th<-  kind. 

«c  In  re  l'.n-li  li  Joint   StOCft   Baal   W.   S.   180   (1888). 


116       RESPONSIBILITY    OF    THE    STATE 
tions,  the  privilege  has  luni  developed  l>v  statute*41     In 

mixed  cases  of  tori  and  contract  the  issue  leeins  largely 
t«.     d.  |n  ml     upon     the     .skill     and     subtlety     of     Opposing 

counsel. 

Once  the  realm  of  contract  is  oyerp  I  tin-  remedy 
ot  petition  ceases  to  be  « tl *  »•  1 1 \ » .  Tori  lies  completely 
outside  tin  region  of  responsibility.  The  negligence  of 
Crown  ierrants  may  destroy  the  Speaker's  property,41  as 
the  seal  <»f  ■  naval  captain  may  destroy  Mr.  Tobin's 
Bchooner;  the  Crown  may,  without  authorization,  infringe 
.Mr.  Feather's  patent,  '  or  see  its  officers  act  wrongfully 

at  a  court-mart  ial  ;    '   in  nom-  of  t  In    I    I   tses  will  a  petition 

lie  The  Crown  may  ask  for  volunteers  and  form  them 
into  regiments;  but  the  regimental  funds  are  Crown  funds 
and  the  colonel's  errors  do  not  render  them  Liable.53     Nor 

are  these  the  bardesl  Cases.  Arrears  of  pay  due  to  naval 
and  military  officers  cannot  be  recovered  ;  "  an  alteration 

in  the  establishment  may  place  an  army  surgeon  upon  the 

half-pay  list  without  claim  of  compensation  ;  M  both  bere 
and  in  the  unreported  case  of  Ryan  v.  1\ .   '  no  inability  in 

the  petitioner  was  suggested.     They  are  servants  of  the 

Crown,  and   the  Crown   lias  the  general   right    to  dismiss 

47  /'.  ./..  under  the  Telegraph  Acta    Great  Western  Railway  v. 

Retina,  4  T.  L  K.  888  (C   A.)    (1889). 

*s  /.'.  ./..  Clarke  r.  Army  and  Navy  Cooperative  Society  [1903], 
1.    K.    B.    166  66. 

49  Canterbury  v.  Attorney-General,  1  Ph.  806  (1848). 
I-Yather   r.    Rejrina,   (i   B.   &   S.   257    (1866). 

■i  Smith  v.  L.  A.  25  EL  112  (  1867). 

62   Wilson  r.    1st    Bdinborg)]  City    Royal   Carrison   Artillery    [1904], 
7    I'.     I    8 

68  Gibson  v.  Rail  India  Co.,  B  Blag.  (N.  C)  262  (1880);  Gldlej  a 
Pahnerston,  8  Ba,  \  B.  276  ( 1822). 
•  //,  n    lutn.ll,  B  Ch.  I).  164  |  1876). 
65  Robertson.  Civil  Proceeding*  agatnsi  tkt  Crown,  357. 


RESPONSIBILITY   OF   THE    mail      117 

•inv  mtinht  r  of  the  military  establishment  without  conn*  d 

Mtion    of   any    kind.''''       Not,    i n«  1<  •  « 1 ,    thut    this    powef    ii 

[united  to  ■  held  irhere  ■  ipecia]  ease  i<>y  expediency 
might  perhaps  l><  mad*  out.  The  Superannuation  Act 6T 
expressly  reserves  to  the  Treasury  and  tin  various  kos~ 
ernmenl  departments  their  power  to  dismiss  any  public 
\  .nit  without  Liability  of  an v  kind.  Except  when  an 
cunt  office  is  concerned,*1  there  is  no  Buch  thing  as  wrong 
ful  dismissal  from  the  service  oi  tin  Crown,  and  even 
where  there  i*>  statutory  provision  against  dismissal,  the 
royal  prerogative  to  abolish  the  office  remain*         It  i-, 

dearly,  impossible  to  make  a  contract    that   will  hind  the 

Crown  against  its  will ; M  and  a>  in  tin  case  oi  the  Fr<  nch 
fonctiomuiircs,  the  Civil  Service  is  left  to  its  collective 
strength  if  it  is  to  protect  itself  against  the  spider's  web 

of  public  policy. 


Ill 

The  protection  taken  to  the  Crown  has  not,  in  general, 
I  n  extended  to  public  officers.  "With  u>,"  says  Pro- 
f<  ->or  Dicey,*  "every  official,  from  the  Prime  M ini-t •  r 
down  to  a  constable  or  a  collector  of  taxes,  i>  under  the 
same  responsibility  for  every  act  done  without  Legal  jus- 
tification a^  any  other  citizen."     No  one  can  doubt  the 

Value  of  this  rule,  for  it   constitutes  the  fundamental  >afc- 

Graol    V.   Secretary  of  State    for    India   in   Council,  L'  ('.    P.   D. 
MB    (1877). 

I   I    B   Will.   IV,  r.  J1.  |  BO. 

On  which  sec  SUngsby'i  Case,  8  Bwanst  ITS  (1680). 
so  Shenton  v.  Smith  [1895],   \.  C  229. 
m  Young  r.  Waller  [  1808],  A.  c  661. 
W   Dunn  r.  Reuina,  1  i).  H.   116. 
"2  cf.  my  Authority  in  ii"   Modern  stat>,  Ch.  •*>. 
63  Jjaw  of  the  Constitution,  %  ed,    lv 


lis       RESPONSIBILITY    OF    Till;    STATE 

guard    against     the    CYUS    of    bureaucracy.       Nfor    have    its 

results  been  of  little  value*     A  colonial  governor M  and 

1     lecrctarv     of    stat<   '       ha\«     be.  n     taught     its     salutary 

lesion;  and  it  is,  as  a  learned  commentator  has  [ » < > i r 1 1 *  < l 
out,"  that  which  makes  for  the  distinction  between  the 
policemen  of   London  and  the  policemen  of   Berlin*     It 

has  the  m<rit  of  enforcing  a  far  innn  strict  adherence 
to  laH  than  h  possible  within  tin-  limits  of  any  other 
Ijstem.       It    re-trains    those    notions   of    state    prerogative 

which  have  an  uncomfortable  habit  of  making  their  ap- 
pearance   in    the   courts   of    the   Continent.      Nothing,   at 

leasl  on  the  surface  of  things,  [g  more  Liable  to  make  an 

official     careful     than    the    rule    that     he    cannot     make    his 

superior  liable  for  the  ad  of  which  he  has  been  guilty,*1 
Yet    there  are  obvious  difficulties   about   this   system 

which  must  make  us  cautious  ahout  its  too  enthusiastic 
acceptance.      Not   only  do   immunities  exist,  but   there   is 

a  broad  field  of  discretion  within  which  the  courts  do  not 
venture  interference.     The  plea  of  act  of  state  is,  of 

COUrse,  a  final  bar  against  all  action;  though  when  it 
op.  rah  s  so  as  to  prevent  government  from  paying  to 
rtain  persons  money  received  under  treaty  for  that 
specific  purpose,*1  it  is  not  char  that  the  result  is  all 
gain.  It  is  justifiable  enough  that  an  official  should  not 
be  made  liable  for  a  contract  be  has  made  on  behalf  of 
the  Crown:      nor,  on  a  similar  ground,   for  money   erro- 

«*   Mostyn  f.   Pabligat,  Cowp.    161    (1774);   Musjrnivr  r.   Pulido,  6 
A.   C    [02    (  ts70). 

«s   Bntkh  V.  Carrinjrton,   1!>  St.  Tr.   1080   (17<i.r>). 
««  i   II. it  Mb  I..  WngUtehi   Btattondd,  9& 
«t  Raldgfa  f.  Goschen,  I  Cb.  78  (1806). 

«"    Barclay  7'.    Russell,  3   Vrs.   \'2\,  181    (lTfT). 

«»  See  PSfaner  r.  Hutchinson,  6  A.  (\  010  (1881),  where  the  cases 
are  reviewed. 


RESPONSIBILITY    OF   THE    STATE      119 

oeously  paid  to  liim  m  its  agent*1  Here  the  real  onus 
of  our  grievance  li  gains!  that  principal  whottc  priori 
infallibility  i^  in  lai  a^unnd.  Tin-  problem  of  irrespon- 
sibility  for  advice  given  to  the  Crown  is  more  difficult ; T1 
for  flu-  actual  organisation  of  political  life  makes  it  well 
nigh  impossible  to  separate  the  particular  facta  involved 
from  tin*  genera]  policy  <>f  the  government.  Nor  i>  th<  re 
liability  for  a  tort  done  in  tin-  exercise  of  a  discretion 
conf<  rred  by  law,  so  long  as  there  is  an  absence  of  mal 
or  improper  motive.  The  courts  air  unwilling,  and 
with  obvious  reason]  to  substitute  their  own  riew  of  poli 
for  that  of  the  recognized  agents  of  administration. 
So,  too,  protection  must  be  afforded  to  the  police  or  the 
proper  execution  of  a  warrant;71  it  would  he  intolerable 
if  a  mere  defeci  of  technical  procedure  broughl  with  it 
liability  to  an  unconscious  ageni  who  was  also  the  hum- 
blest minister  of  the  law. 

Par  more  questionable  is  the  refusal  to  enforce  liability 

against  an  officer  for  the  torts  of  his  subordinate.    Prob- 
lems of  public  policy  apart,  the  ne«rli<rence  of  a  postman 

ought  not  less  to  affect  the  Postmaster-General  w  than 
the  stupidity  of  a  teacher  may  affect  her  employer-. 
If  there  is  to  he  equality  before  the  law  in  any  funda- 
mental sense,  t  lure  must  be  equality  in  the  persons  affected 
by  its  application;  and  the  irresponsibility  of  a  govern- 
ment  official  in  this  aspect   is  at  bottom,  excused  only 

by   introducing  exactly    that   notion   of  state   which    it    is 

70  \Vhitlm\i<!  r.  Rrooksbanfc,  1  Coup,  88  (1771);  Sadler  V.  1  vans, 
I    Burr.    1!>SV    (1986). 

7'    West  P.  W.st,  27  T.  L.  H.  176  (Mil). 

72  Tout*  r.  Child,  7  B.  &  B.  :r?7  (isr>7). 

?^  24  Geo.  II,  Ch.  -11  (1751). 

74  Lane  r.  Cotton,  i  I.d.  Raym.  <>\>>  ( 1701). 

n  Smith.   V,    Martin    [l!»ll],  2    k.    B,    D,    775. 


190      RESPONSIBILITY    OF   THE    STATE 

tin    parpOtC   of    the    rule   of   law    to   avoid.       Sott   lave  on 

similar  ground  .     in  tin-  Public   Aut boril i« «   Protection 

Act    I),     ili  It  ml.  (I  ;         lor    what,    essentially,    i(    cloe.i     i       to 

put   certain  officials  on  a  different    footing  from  oth<  r 

nun.     Moth    the-        ttegories   of    protection    raise    berc 

tin    ^r< m  nil    ijuestion    that    U    involved.       Tin    obvious    aim 

of  the  system  is  to  prevent   the  individual  official   from 

violating  tin    law .     It    does   Dot,  m  <m   the  Continent, 

look    to    tin-    Bufferer9!    loSS.       It    Bimply    insists    that    if    an 

official  has  mad*  a  legal  mistake  he  must  pay  for  it.  Hut 
it  is,  to     i\  the  least,  far  from  clear  srhether  the  rule  i 

-ults    in    justice.      To     throw    upon    a    humble    man     the 

burden  <»f  a  mistake  he  commits  to  the  profit  of  another 
is  surely  hard  measure.  There  w ill,  for  the  most  part. 
In-  no  adequate  opportunity  for  the  complainant  to  have 
adequate  remedy.     Broadly  speaking,  it  must  be  enough 

for  him  that  In-  has  vindicated  a  principle  otherwise  hft 
empty.     Nor  dor-,  the  protection  come,  damages  apart, 

where  it  is  most  needed.  For  the  main  business  of  the 
ordinary  citizen  who  wreaks  his  vengeance  upon  an  un- 
conscious offender  is  to  reach  those  superiors  whom  the 
law  does  not  permit  him  to  touch.  No  protect  ion  is 
offered  against  tin-  negligence  or  stupidity  of  an  official 
SO  long  as  he  keeps  within  the  strict  letter  of  his  statute. 
His  order  may  be  wanton  or  arbitrary,  but  it  is  law. 
The  burden  of  its  error  will  fall  upon  the  humble  official 
who  acts  rather  than  upon  the  man  in  office  who  issii.  s 
a  valid  order.  The  system  may.  as  Mr.  Lowell  has  aptly 
,d,  :  make  liberty  depend  upon  law,  but  it  is  a  liberty 
which  denies  regard  t<>  that  equality  fundamental  to  its 
opt  rat  ion. 

™  5(i  &  r>:  Vict  Ch.  81. 

"   J   Lowell,  Government   of  England,  5(>.'J. 


RESPONSIBILITY    OF    Till.    STATE       121 

It  intensifies)  moreover,  the  tendency  of  the  state  to 
•  <\i|H  the  categories  of  law.  Fori  bj  emphasizing  ■ 
remedy  thai  is  in  do  real  sense  substantial,  it  conceals 
the  real  defects  involved  in  tin  system.  It  ii  true,  <>f 
course,  thai  the  number  of  officials  to  irhom  the  lystem 
applies  is  imaller  than  on  the  Continent;  for  the  Bng 
lish  >tatc  does  not  throw  the  cloak  of  its  lovereignty 
about  its  local  constituents.  Hut  the  number  of  official! 
is  growing;1  and  tin  real  problem  is  Bimply  th<'  maxim 
of  whether  a  principal  mould  be  responsible  for  th<-  acts 
of  his  agent.  In  private  law,  thai  is  obvious  enough; 
yei  the  state,  by  a  subterfuge,  escapes  it--  operation. 
The  protection  of  individual  rights  is  not  maintained 
ezcepi    at    the  expense  of  other   individuals;   where   t  1m* 

tl  point  at   i>sue  is  to  maintain  them  at    the  expense    of 
the  illegally  assumed   rights  of  the  state.     Por,  theory 

apart,  the  Crown  has  not  less  acted  when  a  colonel  mis- 
takenly orders  hifl  men  to  fire  upon  a  mob  than  when 
the  Kin£  by  bis  signature  turns  a  hill  into  an  Act  of 
Parliament. 

The    lack,    again,    of    any    control    over    acts    that    are 

technically   legal    is   thrown   into   clearer   relief   by   the 

recent    development    of   administrative    law.     Indeed,    it 
may  he  here  suggested  that  what  that  development  essen 
tially  reveals  i-^  the  limitation  of  the  rule  of  law   when 
the   rule  operates   in   the   presence   of   an   irresponsible 

state.  If,  under  the  Second  Empire,  the  Napoleonic 
police  arbitrarily  suppress  a  newspaper/"  or  destroy  the 
proof-sheets  of  a   work   by   the   Due   d'Aumal  it    is   not 

difficult   to  perceive  that   the  invasion  of  individual  liberty, 

ri  Cf.  Wallas,  Th   Gr—i  8oeUtyt  7. 

-■'  D.-.ii,./.  is.™  in.  :,:. 
so  //,,,/.,   is.;:,  Ill,  t 


129       RESPONSIBILITY    OP    THE    STATE 

where  do  cans*  ww  the  will  of  ^ovcrnmcnl  is  shown,  it, 
in  fact,  most  serious,  A  state,  in  brief,  the  officials  of 
which  can  ad  without  the  proof  of  reasonableness  in- 
herent in  the  methods  of  their  policy,  has  ^om.  f.u.  \n 
destroy  the  notion  which  liei  at  the  basis  of  law. 

This  recent  development  lias,  indeed,  ■  history  that 
goet  back  to  the  tendency  of  the  official  to  shoi  deep 
dissatisfaction  with  the  slon  moving  methods  of  the  law. 
The   technicalities  of  the   Merchant    Shipping  Act,  for 

instance,   actually    Operate,   BO    WC    I  PC    told,"1    to    make    it> 

provisions  for  detaining  nnseaworthy  ships  substantially 
null  and  void.  Effort  has  in  recent  years  been  made 
to   free  the  administrative  process  from  the  hampering 

influence  of   the    rule   of   law.      Where,   a    generation   ago, 

Parliament  laid  down  with  strict-  minuteness  the  condi- 
tions   of    taxation,    to-day    the    Board    of    Customs    and 

Excise  has  practically  legislative  powers.       "Wise  men," 

laid  Sir  Henry  Taylor  in  a  remarkable  sentence, u  "have 
always  perceived  thai  the  execution  of  political  measures 
i->  in  reality  the  essence  of  them";  and  it  is  this  which 
makes  bo  urgent  the  rigorous  regard  of  executive  prac- 
tice.     In  the  stress  of  conHict,  perhaps,  cases  like   R.  v. 

HaUiday  "l  may  !><■  pardoned;  though  it  is  well  even  tin  re 

to  consider  whether  the  end  the  means  IS  to  serve  m;iv 
not    be   lost    sight    of   in   the  means   a   narrow   expediency 

seems  to  dictate.  But  a  far  wider  problem  is  set  in 
the   Arlidge  cs  For  here,  in  fact,  not  only   is  the 

Ditty,  Low  of  tkt  ConitUwHon,  6  <•(!.,  80S. 
Pourtii  Report  of  the  Royal  Commission  on  the  civil  Service 
(101  n.  Cd  7888;  2& 

net,  99. 
**  [191T]  A.  ('.  28a 

«  r.  Lord  Shaw1    dissent  in  Res  v.  HaJliday,  tapra. 

s«  [1915]  a.  c  uia 


RESPONSIBILITY    OF    THE    STATE       128 

court  excluded  from  the  consideration  of  an  administra- 
tive decisions  but  the  testa  oi  judicial  procedure  irbicfa 
have  been  proved  \)\  i-xprriciioj  are  excluded  without 
meana  at  hand  to  force  their  entrance*  What,  broadly, 
the  Arlidge  caae  meana  ia  thai  a  handful  of  officials  will, 
without  hindrance  from  the  courtai  decide  in  their  own 
fashion  what  method  of  application  an  Act  of  Parliament 

ia   to  have.      And  where  the  state   that    is  acting   through 

their  agencj  ia  an  irresponsible  state,  ire  have  in  fact 
a   return  to  those  primitive  methods   of  justice   tradi 

tionallv  associated  with  the  rough  efficiency  of  the  Tudor 

This  is  not  to  say  that  administrative  law  represents 

a  mistaken  evolution.  The  most  striking  change  in  the 
political  organization  of  the  last  half  century  is  the 
rapidity  with  which,  by  the  sheer  pressure  of  events,  the 
state  has  been  driven  to  assume  a  positive  character.  \\Y 
talk  less  and  less  in  the  terms  of  nineteenth-century  in- 
dividualism. The  absence  of  governmental  restrain!  has 
ceased  to  seem  the  ultimate  ideal.  'There  is  evervwhere 
almost  anxiety  for  the  extension  of  governmental  func- 
tions. It  was  inevitable  that  such  an  evolution  should 
involve  a  change  in  the  judicial  process.  Where,  for 
example,  great  problems  like  those  involved  in  govern- 
ment insurance  are  concerned,  there  is  a  great  conven- 
ience in  leaving  their  interpretation  to  the  officials  who 
administer  the  Act.  They  have  gained  in  its  applies 
tion  an  expert  character  to  which  no  purely  judicial 
body  can  pretend;  and  their  opinion  has  a  « right  which 
no  community  can  afford  to  neglect.  The  business  of 
the  state,  in  fact,  has  here  become  SO   much   like  private 

»7  Cf.    Pound,   Address   to  the   New    Hampshire    Bftl     \     "  i.itien, 
June  BO.  1917. 


124      RESPONSIBILITY    OF    THE    STATE 

business  that,  as  Professor  Dicey  has  emphasised/  Its 
officials  need  "that  freedom  of  action  oecessarflj  p()>- 
>ed  by  i\»i\  private  person  in  the  management  of  his 
own  persona]  concerns."  So  much  is  tolerably  clear. 
Bui  history  suggests  that  the  relation  of  such  executive 
justice  to  thr  slow  infiltration  of  a  bureaucratic  regime 
is  at  each  stage  more  perilously  close  {  and  the  develop 
men!  of  administrative  law  needs  to  be  closely  scrutinized 
in  the  interests  of  public  liberty.  If  a  government  de- 
partment mav  make  regulations  of  any  kind  without 
any  judicial  tests  of  fairness  or  reasonableness  being 
involved,  it  is  clear  that  a  fundamental  safeguard  upon 
English  liberties  has  disappeared.  If  administrative  ac- 
tion can  escape  the  review  of  the  courts,  there  is  no 
reality  in  official  responsibility;  and  cases  like  Entick  v. 
Carrington  m  become,  in  such  a  contest,  of  merely  anti- 
quarian interest.  If  the  Secretary  of  State,  under  wide 
powers,  issues  a  regulation  prohibiting  the  publication 
of  any  book  or  pamphlet  lie  does  not  like  without  previous 
submission  to  a  censor,  who  may  suppress  it  without 
assignment  of  cause,  the  merest  and  irresponsible  caprice 
of  a  junior  clerk  may  actually  be  the  occasion  for  the 
Suppression  of  vital  knowledge;00  nor  will  there  be  the 
means  judicially  at  hand  for  controlling  the  exercise  of 
such    powers.      The    legislative    control    that    misuse    will 

eventually  imply   is  so  slow  in  coming  that   it   arrives 

almost    always    too    late.       And    the    cabinet    BVStem,    with 

its  collective  responsibility,  virtually  casts  its  enveloping 
network  of  protection  about  the  offender.     A  member  of 

m  Bl  L.  QnaH.  /.'<;.  1  is,  1.50. 

*•»   1!»   St.  Tr.    HiMo. 

oo  Defence  «>f  the  Realm  Art.  Order  No.  51.    Cf.  The  London 
Nation,  |  B,  1917. 


RESPONSIBILITY    OF   THE    STATE      125 

Parliament  may  resent  the  stupid  imprisonment  of  a 
distinguished  philosopher;  but  hi^  resentment  will  rarely 

take    the    form    of    turning    out    the    gOVernmenl     a^    ■ 

protesl .'" 

In   such   a   situation,   it    is   obvious   that    we   must    have 

safeguards!     It  is  not  adequate  to  give  half-protection 

in  i\\r  form  of  the  rule  of  law,  and  then  to  destroy  the 
utility  of  its  application.  What,  in  fact,  is  implied  in 
a    state   which    evades    responsibility    is,   sooner    or    Later, 

the  irresponsibility  of  officials  immediately  the  business 

of  the  state  is  complex  enough  to  make  judicial  control  a 
source  of  administrative  irritation.  Administrative  law, 
in  such  an  aspect,  implies  the  absence  of  law;  for  the 
discretion  of  officials  sitting,  as  in  the  Arlidge  case,  in 
secret,  cannot  be  called  law.  What  is  needed  i^  rather 
the  frank  admission  that  special  administrative  courts, 
as  on  the  Continent,  are  needed,  or  the  requirement  of 
a  procedure  in  which  the  rights  of  the  private  citizen 
have  their  due  protection. M  What,  in  any  case,  is  clear 
is  the  fact  that  the  official  will  not,  in  any  other  way, 
be  substantially  subject  to  the  rule  of  law.  In  the  vital 
case  the  avenue  of  escape  is  sufficiently  broad  to  make 
legal  attack  of  little  use.  It  is  hardly  helpful  to  be  able 
to  bring  a  policeman  into  court  if  the  real  offender  i^ 
the  Home  Secretary.  It  is  utterly  useless  even  to  make 
protestation  if  the  government  is,  by  virtue  of  itfl  grow- 
ing business,  to  take  its  acts  from  the  public  view.  Grow- 
ing functions  ought  rather  to  mean  growing  responsibility 
than  less;   and   if  that   should   involve  a   new   system  of 

H  On  tin-  private  member's  protest,  et\  Low,  OoVi  rmtnr,  of  /.V/- 
html.   5    eil.,   Ch.    ft. 

9-  An  in  the  United  States.  New  York  v.  Public  Service  COflUQiS- 
sion,  88  Sap.  Ct  Rep.  122  (1917). 


126      RESPONSIBILITY    OF   THE    STATE 

rights  it  makes  though!  about  its  content  only  the  greater 
need.  The  ordinary  citizen  <>t  to-day  is  so  much  the 
mere  subject  of  administration  thai  wi  cannot  afford  to 
otitic  the  least  opportunity  of  hii  active  exertions*  The 
\.r\  icale,  in  fact,  of  the  great  society  is  giving  nen 
substance  to  Aristotle's  definition  of  citizenship, 

The  America  which  .1  Revolution  brought  into  being 
did  not  relinquish  the  rights  surrendered  bv  George  III 
at  Versailles.  If  the  people  is  to  be  master  in  its  own 
house,  it  trill  not  belittle  itself  and  cease,  in  consequence,  to 
be  sovereign.  Rights  here,  as  elsewhere,  are  to  flow  from 
the  fount  of  sovereign  power;  and  its  irresponsibility  is 

the  natural  consequence.  That  the  state  is  not  to  be 
Bued,  in  truth,  is  taken,  even  by  the  greatest  authority, 
afl  a  simple  matter  of  logic.  "A  sovereign,"  says  Mr. 
Justice  Holmes,91  "is  exempt  from  suit,  not  because  of 
any  formal  conception  or  obsolete  theory,  but  on  the 
logical  and  practical  ground  that  there  can  be  no  legal 
right  as  against  the  authority  that  makes  the  law  on 
which  the  right  depends."  Nor  did  Mr.  Justice  Holmes 
fail  to  draw  the  inevitable  conclusion  from  that  attitude. 
The  sovereignty  of  the  people  will  mean,  in  actual  terms 
of  daily  business,  the  sovereignty  of  its  government.94 
"As  the  ground  IS  thus  logical  and  practical,"  he  said, 
k*the  doctrine  is  not  confined  to  powers  that  are  sovereign 
in  the  full  mum'  of  juridical  theory,  but  naturally  is  ex- 
truded to  those  that,  in  actual  administration,  originate 
and  change  at  their  will  the  law  of  contract  and  property 

Kawananakoa  r.  Potyblank,  205  U.  S.  .*uo  (1007). 
m  Cf,  my  paper  <>n  "The  Theory  <>f  Popular  Sowreignty"  in   the 

Mirh.    /..    /:,:■.   for  January,   191<>. 


RESPONSIBILITY    OF    THE    STATE       127 

from  which  persona  within  the  jurisdiction  derive  their 
rights,91  Here  i>  the  Austinian  theory  of  sovereignty  in 
all  its  formidable  completeness;  though  it  is  irorth 
noting  thai  its  complications  have  elsewhere  driven  Mr. 
Justice  Holmes  to  the  enunciation  of  ;i  doctrine  of  quasi- 
•overeigntv  that  the  hardness  of  the  rule  mighl  §uff<  r 
mitigation.91     No  such  certainty,  indeed,  existed  in  the 

rally   davs  of  the   Republic,   and    Chief   Justice   Jay    and 

Mr.  Justice  Wilson  regarded  the  immunity  of  the  state 
from  suit  as  the  typical  doctrine  of  autocratic  govern- 
ment.*6    But,  from  the  time  of  Cohent  v.  Virginia*    the 

doctrine  of  non-suability  has  taken  firm  hold ;  and  men 
such  as  Harlan,  J.,  have  urged  it  with  almost  religious 
fervor.98 

The  result  is  that,  broadly  speaking,  the  situation  is 
hardly  distinct  in  its  general  outlines  from  that  of  Great 
Britain.  In  eight  of  the  states  there  is  actual  constitu- 
tional provision  against  suit;  and  in  sixteen  more  special 
privileges  arc  erected  as  a  tribute  to  its  sovereign  charac- 
ter." It  is,  in  short,  the  general  rule  that  a  state  will 
not  be  liable  for  acts  which,  were  they  not,  directly  or 
indirectly,  acts  of  the  government,  would  render  the  doer 
responsible  before  the  courts.100  The  United  States  will 
abuse  the  patents  of  its  citizens  hardly  less  cheerfully 
than  the  British  Admiralty.101     State  duties,  like  prison 

N  (Borgia  r.  Trnn.  Copper  Co,  906   V.  S.  230   (1907). 
e«  CMsfaohn  r.  Georgia,  2  DalL  (U.  S.)  119  (1798). 

or  6  Wheat.  (U.  S.)  264,  882  (1821). 

o«  Cf.,  for  instance,  United  States  V.  Texas,  148  I'.  S.  621    (1892), 
and  Poller,  C.  J.,  in  Kansas  p.  United  States,  204  r.  S.  881  (1907). 
99  Beard,  Jndom  ,,f  Stat*   Constitution*,  I860.     . 

1«0  Murdoek  Parlor  (Irate  Co.,  v.  Commonwealth,  169   Most,  28,  21 

N.  K.  854   (1S90). 

ioi  Belknap  v.  Schild,  161    U.  S.   10   (1896). 


128      RESPONSIBILITY    OF    THE    STATE 

in.-imti -n.-ui  and  Mm   repair  of  roads,      maj  !>■   done 

iriihout  n  t'«  n  nee  bo  the  oegieci  of  private  interest  Tli<- 
rule  got  -  even  further  and  protects  a  charitable  institu- 
tion like  an  agricultural  society  from  the  accidenti  thai 
happen  in  the  best-regulated  fair*.1*  If  the  state  leasee 
an  annorj  for  athletic  purposes  and  baa  failed,  through 
sheer  negligence]  to  repair  a  defective  railing,18  it  does 
not,  to  saj  the  least]  seem  logical  to  refuse  compensation] 
especially  when  damages  may  be  obtained  in  a  similar 

case   from  a   municipal   body."        Rut   a  sovereign   is   per- 

baps  unamenable  to  the  more  obvious  rules  of  lo^ic. 

\<>r  bas  America  made  substantial  departure  from  the 
British  practice  in  regard  to  ministerial  responsibility. 
Only  one  case  against  the  head  of  an  executive  depart- 
ment seems  to  exist,  and  it  was  decided  adversely  to  the 
,  plaintiff.10*  Nor  are  purely  ministerial  officials  1m  Id  re- 
sponsible  for  actions  following  upon  instructions  legal 
upon  their  face;101  and  that  although  the  officer  may 
\x  convinced  thai  the  instruction  in  fact  breaks  the  law.K 

The  law,  indeed,  has   many  anomalies  about   it.      A  com- 
pany which  serves  as  a  mail  carrier  is  not  responsible  to 
the  owner  of  a  package  for  its  loss;  ""  it  i>  here  an  agenl 
Moody  v.  State  Prison,  128  N.  C.  12,  88  S.  B.  181  (inoi). 

Johnson    V.   State,    1    Court   of   Claim.    (111.),   208. 

Bemoan  v.  State  Agricultural  Society  of  Minnesota,  08  Minn. 
128;  I'M*  v  w.  im  (1904). 

EUddoch  r.  SUte,  88  Wash.  820,  128  Pac  180  (1912). 
101   Little  v.  Holyokc.  177  Mass.   ill.  88  N.  B.   170  (1900).     I  owe 
my  knowledge  of  this  and  the  other  state  eases  in  America  to  the 

hrilliant  artiele  of  Mr.  R.  D.  Mapuirr.  80  IJnrv.  L.  /»'av,  20  ff. 

r.  Kendall,  8  How.   (U.  S.)   87  (1846). 
tai  Brsldne  v.  Bohnhach,   n  Wall.  (U.  S.)  818  (1H71). 

Wall  V.  Trumbull.   16   Mkh.  298   (1867) |   Underwood  r.  Ro'oin- 
son.  I"-.    Mi     .  296   (1^71). 

no  Banker  '   Mutual  I     salty  Co,  r.  Minneapolis,  etc.  Ry.,  117 

]  .  d.    11    (1902). 


RESPONSIBILITY    OF    THE    STATE       L29 

of  government,  and  so,  as  il  -.  .  ins,  protected  from  the 
const  (jut  net  i  of  its  acts.  Hut  a  mail  contractor  will  In- 
habit- for  tin-  negligence  of  the  carrier  whom  he  em- 
ploys. Once   an    official    engages   a    private   servant    to 

perform  ■  task,  the  ordinary  rules  of  principal  and  agent 
are  laid  to  apply.111  Certain  mystic  irordi  are  here,  as. 
elsewhere,  the  \ital  point  in  the  evasion  <>i  law, 

Sm  I »  facts  converge  towards  an  argument  ti i-t  itated 

in   a   distinct    form   by    Haley.      "So\  ercignt  v,"   he   s.a\s,113 

"may  be  termed  absolute,  omnipotent,  uncontrollable,  ai 
bitrary,  despotic,  and  is  alike  bo  in  all  countries."    Cer 
tainly   the  tonus  of  government   could  in  no  tun  coun 
tries   remain   more  substantially  distinct    than   those  of 
England  and  the  United  States;  yet,  in  each,  the  attri- 

butes  of  sovereign  power  admit  no  differentiation.  What 
mitigation  there  is  of  a  rule  hard  alike  in  intent  and 
execution  is  the  mitigation  of  the  sovereign's  generosity; 
that  is  to  say,  a  mitigation  which  stops  short  where  the 
Treasury  becomes  concerned.  For  this  theory  of  an 
auto-limitation  of  the  sovereign's  power  has  in  fact 
nothing  of  value  to  contribute  to  our  problems.  The 
real  need  is  the  enforcement  of  responsibility,  and  that 
cannot  he  effected  if  the  test  is  to  be  our  success  in  con- 
vincing the  sovereign  power  of  its  delinquencies.  The 
fact  is  that  here,  as  elsewhere,  the  democratic  state  bean 
upon  itself  the  marks  of  its  imperial  origin.  The  essence 
of  American  sovereignty  hardly  differs,  under  this  aspect, 
from  the  attributes  of  sovereignty  as   Bodin  distinguished 

them  three  centuries  ago.114     What  emerges,  whether  in 

in    Sawyer  v.  Corse,   17  Graft.    (Y:i.)    280    (1807). 
ill   Dunlop  7-.   Miinroc,  7  ('ranch    (U.  S.)    M9    (1812). 

ftforaJ  to»d  Political  rhiintnfjh,,,  \\k.  vi,  Ch.  <;.    Cf.  my  .-*«<- 

thoritii  in   th,    M<nt,  m   St.it,  .   J'»   f. 

in  Di   /«  B4pmbUqu4,  I,  8,  9.    Cf.  Chrariri  Bodim,  811  f. 


L80      RESPONSIBILITY    OF   THE    BTATE 

England  or   in   Hi*'  Imfcd  States,  is  the  fad   that   an 

.\u>timan    state    IS    incompatible    with    the    substance    of 

democracy.  For  tin-  latter  unpins  responsibility  by  its 
\<r\  definition;  ami  the  Austinian  lystem  i^,  at  bottom, 
Mmplv  a  method  by  which  Mm-  fallibility  <>f  men  is  con- 
cealed imposingly  from  the  public  new. 


The  Anglo  American  system  exists  in  isolation;  and 
it  in,  in  a  sense,  tin-  only  <>m-  vrhich  has  remained  true 
to  the  logical  conditions  of  its  origin.  In  Prance  and 
( it  i m.iii \  a  regime  exists  which,  while  in  no  sense  anti- 
thetic, ina\  be  nsefully  contrasted  with  the  more  logical 
effort  here  discussed.13  No  text,  indeed,  declares  in 
Prance  the  responsibility  of  the  state;  such  concession 
to  the  historic  content  of  sovereign  power  is  here,  as  dse> 
where,  deemed  fundamental.  Hut  the  courts  have  little 
by  litth-  been  driven  through  circumstances  to  desert  this 
rigidity,  ^>  that  in  tin-  Prance  of  to-day  the  older  notion 
of  irresponsibility  is  no  longer  existent.  The  state,  in- 
ch* d.  i>  in  nowise  liable  for  the  consequence  of  its  legis- 
lative  acts;  though  the  demand  for  compensation  in  cast i 

where  a  Btate  monopoly  has  been  created  are  not  without 

their   interest.     Nor   must    we   miss   the   significance  of 

ministerial  protest  against  the  easy  thesis  that  the  obli- 
gations of  the  state  are  liable  to  instant  change  by 
statute.™ 

ii'  The  literature  of  the  responsibility  <»f  the  state  In  Prmnee  ami 
■mum   ii  now  enormous.    The  two  best  treatises  on  tin-  Former 

country    are    those    of    TleSftler    and    Tirard.     On    Germany    the    hest 

general  dlscn    Ion  is  still  that  of  Otto  sfayer,  Devises*!   Perssel- 

Nmeereeaij  Bk.  Ill,  >'  17.    Cf.  also  Loening,  Dit  Efte/fway  </'.<  8tmtU$9, 

Dngnit,  Lai  rramiformaHoM  dm  l>r<>it  Pa6Ke,986  '5!'  (a  tr.ms- 

iiti.-n  «.t  this  work  has  been  published  ss  Less  in  th<  Modern  state). 


RESPONSIBILITY    OF    THE    STATE      181 

What  [i  perhaps  more  lignificani  than  the  lubftanoe  of 
the  decision  la  the  manner  in  which  thii  jurisprndi  not  has 
been  evolved,  We  itart,  m  in  England)  with  an  irrespt 
sible  state.  Little  by  little  a  distinction  is  made  between 
tin*  acts  of  tin-  state  in  its  sovereign  capacity,  wh< 
irresponsibility  remains,  and  in  its  qoh  sovereign  aspect, 
where  liability  la  assumed.  Bui  it  has  been  in  the  last 
decade  seen  that  such  distinction  is  in  fact  untenable  and 

thai     the    test     of    liability     must     be    BOUght    in    different 

liion.      While,    therefore,   the    ><  >\  «•  rei  gnt  y    of    the    state 

finds   its   historic  emphasis   within   the  chamber,111    it    is 

leas  and  leas  insistent  before  the  Conneil  of  State.  And 
even  within  the  Chamber  Suggestions  of  a  notable  kind 
have  been  made.  It  was  M.  Cleiiieneeau  who  proposed 
statutory    compensation    for    unlawful    arrest;111     and    a 

\ote  of  credit  for  this  purpose  has  been  made  in  every 

budget  since  1!H0.  Here,  at  least,  is  a  clear  admission 
that  the  sovereign  state  is  a  fallible  thing. 

Hut   a   more  notable   change  even   than   this   may   be 
observed.      The    administration     has    become     responsible 

for    faults    in    the    exercise    of    its    functions.      There    has 

been  evolved,  if  the  phrase  may  be  permitted,  a  categorj 

of  public-  torts  where  the  state  becomes  liable  for  the 
acta  of  its  agents.     And  this  is,  in  fact,  no  more  than 

the  admission  of  that  realism  which,  in  the  Anglo  Ainer- 
ican  system,  has  no  opportunity  for  expression.  For 
every  state  act  is,  in  literal  truth,  the  act  of  some  official; 
and  the  \ital  need  is  simply  the  recognition  that  the  aets 
of  an  ageni  involve  the  responsibility  of  bis  superior. 
Where    the   ser\  ice  of    the    state,   that    is    to    say,    is    badly 

performed  in  the  sense  that  its  operation  prejudices  the 

!'•  cf.  my  Authority  in  th,   Modm  >v.i/».  Ch.  5. 
ui  Dogntt,  "/'.  eit.,  •-'"'-' 


189       RESPONSIBILITY    OF    THE    STATE 

inferest     of    a     private    citizen    more    especially    than    the 

inti  !<  >u  of  tin  mass  <»f  men,  tin-  exchequer  ihould  li<  open 
for  his  relief.  Obviously  enough  a  responsibility  itated 
in  these  terms  beoomes  do  more  than  equitable  adjust- 
ment. If  the  itate  comes  down  into  the  market  place  it 
must,  a^  even  American  courts  have  observed,11*  pul  off 
its  robe  of  **<>n<  n  ignf  •  and  act  like  ■  human  being. 

This  modern  deyelopmeni  goes  hack  to  a  distinguished 
jurist'a  criticism  of  the  Lepreui  case,  in  1  -sit'.).1  '  Lepreaui 
was  injured  by  the  state-guard  in  the  performance  of 
its  duties;  ami  bis  plea  for  damages  srai  rejected  on  the 
ground  thai  it  was  an  inadmissible  attack  on  the  m 
ereignty  <»f  the  state.  If.  Hauriou  argued  that  this  ■ 
the  coronation  of  injustice.  He  did  not  deny  thai  there 
are  cases  irhere  public  policy  demands  irresponsibility; 
hut  be  urged,  in  effect)  thai  in  the  general  business  of 
daily  administration  negligence  ought,  as  with  the  rela- 
tions of  private  citizens,  to  have  its  due  consequent 
The  result  of  his  argument  was  seen  in  the  next  few  years. 
In  the  Grecco  case,  for  example,  though  the  plaintiff  was 
unsuccessful,  the  ground  of  bis  failure  was  not  the  ir- 
responsibility of  the  state,  hut  the  fact  that  he  had  not 
proved  his  claim  of  negligence.1*1     It  was  thus  admitted 

that  the  state  was  not  infallible,  and  the  way  lay  open  to 
a  striking  development.  The  Council  of  State  was  will- 
ing to  insist  upon  damages  for  an  unduly  delayed  ap- 
pointment of  a   retired   soldier   to   the  civil   service;   it 

held   the  state   responsible  for  the   faulty  construction  of 
n»  Charleston   r.    Murray,   9G    U.   S.    189    (1877) |    United    State! 

as  9,  Planters1  Hank,  0  Wheat  (U.  B.)  Ml  (1884) j  The  Royal 

acceptances,  7  Wall,  mv  s .)  <-<.<;  (\ms). 
Strey,  1900,  HI,  l. 
isi  Ibid.,  Iia 


RESPONSIBILITY    OF    Till;    STATE       188 

a    canal.1'         Iloti     r«  ina  rkahh-    of    all     was     perhaps     the 

Plucliani  vnsv  in  which  a  civilian  obtained  damages  for 
a  fall  occasioned  f>v  an  involuntary  collision  «ith  a  pole 

man     in     pursuit     of    ■     thief.1  Sot    lias     the    evolution 

■topped  there,  It  hai  become  possible  to  overturn  kr,,v 
ernmenta]  ordinances  the  analogue  of  the  English 
provisional  order;  orf  at  least,  to  obtain  special  com- 
pensation where  hardship  in  the  application  of  the  ordi- 
nance can  be  proved.  What  practically  lias  !>• 
established  is  governmental  responsibility  irhere  the  ad- 
ministrative act    is   in  genuine  elation   to   the  official's 

duty.      It    is  only   where   as   in    the    Mori/ot    cat*  the 

official  goes  clearly  outside  his  functions  thai  the  state 
repudiates  Liability. 

No   one    will    claim    for    this    French    evolution    that    it 
has    h«rn    the    result    of   a    conscious    effort    to    overthrow 

the  traditional  theory  of  sovereignty;  on  the  contrary, 

its  slow  and  hesitating  development  suggests  the  difficul- 
ties    thai     have     been     encountered.1-        Hut     no      Fi«  nch 

court  will  say  again,  as  in  the  Blanco  case,      thai  prob 

h  nis  of  state  are  to  be  ruled  by  .special  considerations  alien 

to  the  categories  of  private  Law.     The  real  advantage, 

indeed,  of  the  system  IS  its  refusal  to  recognize,  within, 
at  least,  the  existing  limits  of  this  evolution,  any  Special 
privilege  to  the  state.      It   judges  the  acts  of  authority 

Cf.    Dugult,   Of.   cit..   Ml, 
Hr.ll.il     (  l!»K»),     1029. 
124  Sinv.   1908,   III.   I,  and  tee  the  account   «>f  the  Turpin  rase  in 

Dugnit,  op.  ri/..  266,  f«»r  the  application  <>f  Ksponsibflftj  to  minis 

teriil  negligence  «>f  i  special  kind. 

Sir.  y,    1908,    III, 

1 1  •    imbroslnl  case,  for  example.  Sirey,  1912,  III.  161,   nggests 
a  revulsion  of  lentiment. 

127   Hauriou,  Prtc'u  de  Droit  Adminittratif,  8  cd.,  5<>:J,  note  1. 


184       RESPONSIBILITY    OF   THE    STATE 

by  the  recognised  rules  of  ordinary  justice  It  a-k->,  as 
it  ii  rarely  righl  to  ask,  tin-  tame  itandard  of  conduct 

from  a  public  official  as  would  bi  expected  fi'oin  a  pri- 
c  citi/.  n.  The  method  may  ha\«-  it,  dis.ub  ant  ftgee. 
There  is  undoubtedly  i  real  benefit  in  the  Anglo  Ameri- 
can method  of  bringing  the  consequences  of  each  act 
rigidlj  to  bear  apon  the  official  responsible  for  it.     Yet, 

as  has  been  shown,   this   theory  is   far  different    from  the 

application  of  the  rule  in  practice;  it   doea  not   affect 

those  upon  whom  the  cloak  of  sovereignty  M  thrown;  and 
it   offers  no  prospect  of  any  full  relief  to  the  person  who 

has    been    prejudiced.      These   evils,   at    least,   the    French 

method  avoids.     It  conceives  of  the  state  as  ultimately 

no  more  than  the  greatest  of  public  utilities,  and  if  insist-, 
that,  like  a   public   utility   in   private  hands,   it    shall  act 

at  its  peril.  In  an  a#e  where  government  service  has 
1m  en  BO  vastly  extended,  the  merit  of  that  concept  is 
unquest  ionable. 

It  may,  of  course,  be  argued  that  such  an  attitude  is 
only  possible  in  the  special  environment  of  French  adminis- 
trative law.  That  system  is  as  Professor  Dicey  lias  taught 
us  in  his  classical  analysis, lli  essentially  a  system  of 
executive  justice,  basically  incompatible  with  the  idealfl 
of  Anglo-American  law.  Yet  there  are  many  answers 
possible  to  that  attitude.  French  administrative  law  may 
be  in  the  hands  of  executive  officials;  but  no  one  wbo  lias 
watched  its  administration  can  urge  a  bias  towards  the 
administration  on  the  part  of  the  Council  of  State. 
Nor,  if  the  fear  remain,  need  we  insist  upon  the  rigid 

128  Imp  of  thp  Constitution,  8  e<l.,  321-401. 

i=o  Cf.  V.  Iff.  P..rk.T,  10  TJnrv.  Lmm  !■■■■.  888.  Mr.  Parker  pvoB 
pood  r\  irnyil.  of  t his  tendency:  hut  I  do  not  think  he  has  altogether 
realized  the  substantial  character  of  Professor  Dicey's  strictures. 


RESPONSIBILITY    OF    THE    STATE       L85 

outlines  of  the  French  inheritance.     The  Prussian  lystem 
of  administrative  law   Is  administered  by  special  com 
and  it   has  uon  high  prais<    iioin  distinguished  author- 
ity,        It"  it  be  true  thai  the  pressure  of  executive  business 
makes  continuous  recourse  t<>  the  ordinary  courts  imp 
Bible,  the  establishment  of  Buch  maj  !»<■  the  necessarj  and 
concomitant  safeguard  of  private  liberty ;  and  Mr.  Barl 
has  pointed  out  thai  In  the  English  umpires  and  ref< 
u<    have  the  foundation  upon  which  an  adequate  system 
can  be  i t<  cted.1*1    Certain  at  Leasl  it  i>  that  in  no  other 
way  than  some  Buch  development  can  we  prevent  the  anni 
bilation  of  that  Bturdy  legalism  which  was  the  rial  con- 
dition of  Anglo-Saxon  freedom. 

VI 

"It  is  a  wholesome  Bight,*1  said  Maitland  in  a  famou-. 
sentence,1*1  "to  sec  'the  Crown'  sued  and  answering  for 
its  torts."  We  perhaps  too  little  realize  how  much  of 
historic  fiction  there  is  in  the  theory  of  the  English  state. 
Certainly  there  have  been  moments  in  its  early  develop- 
ment when  it  almost  seemed  as  though  the  great  maxim 
respondeat  superior  would  apply  to  official  persons;  for 
in  documents  no  less  substantial  than  statutes  the  germ 
of  official  responsibility  is  to  be  found.1*  But  the  doc- 
trine seems  to  climb  no  higher  than  the  sheriff  or 
Keator,  and  it  is  in  Council  or   Parliament   that   the 

greater   men    make   what    answer   they   deem    fit.       And.   as 

Maitland  Baid,]  '  we  should  not  expect  to  find  the  medieval 

I  C'f.    B.    Barker,  2    1'nlitical   Qwrt.    117. 
131  //,,«/.,  188  f. 
im  B  OdUtUd  PflfMftj  96& 
133  statutr  of  W—tmintn  II,  Ifl  Rdw.  I,  St.  i,  Ch,  %  §  3  (1289)] 

Articuli   Sn/,,  r   ('urtns.    |    [%. 
134   3    Cullrcttd    PSffffj    247. 


180      RESPONSIBILITY    OF    THE    STATE 

King  a  responsible  officer  simply  because  be  was  everj 

inch  a  man.       When  theory    devdopi  it    was   thai   tOO  late. 

Tbe  wholesome  sight  i^  beyond  our  vision.     The  state  i^ 

still    tin     King;   and    if   an   ocasional   judge,   more   deeply 

eing  or  blunter  than  the  rest]  tells  us  thai  our  eases 
in  fact  concern  not  the  state  or  the  Crown  but  the  gov- 
ernment, a  phrase  used  obiter  is  Dot  strong  enough  to 
point    the   obvious    moral.135 

Yi-t   obvious  it    i>;  and  if,  for  a  moment,  we  DK>ve  from 

law  to  its  philosophy  the  groundwork  of  our  difficulties 

will  bt  clear  enough.  We  are  struggling  to  apply  to  a 
situation  that  is  at  each  moment  changing  conceptions 
that   have  about  them  the  special  fragrance  of  the  Coun- 

t.  r-Reformation.  It  is  then  that  the  absolute  and  ir- 
responsible state  is  born,  and  it  is  absolute  and  irre- 
sponsible from  the  basic  necessity  of  safeguarding  its 
rights  against  the  Roman  challenge.13'  But  the  attri- 
butes are  convenient,  especially  when  they  are  in  actual 

I  exercised  by  government.  For  then,  as  now,  in  the 
normal  process  of  daily  life  what  we  in  general  fail  to 
see  is  that  acts  of  state  are  governmental  acts  which 
command  the  assent  of  the  mass  of  men.  The  classic 
theory  of  sovereignty  is  unfitted  to  such  a  situation.  The 
fundamental  characteristic  of  political  evolution  is  the 
notion  of  responsibility.  If  our  King  fails  to  suit  us  we 
behead  or  replace  him;  if  our  ministry  loses  its  hold,  the 

ult  is  registered  in  the  ballot-boxes.  But  the  cate- 
gorii -s  of  law  have  obstinately  and  needlessly  resisted 
such  transformation.  The  government  has  for  the  most 
pari   kept  the  realm  of  administration  beclouded  by  high 

Mersey  Docks  v.  Gflbbs,  L  Et  I   H,  L.  93,  111,  per  Black- 
bum,  .F. 

(_'!'.  my  AuthurHii  in  tin    M,„l,r,i  Stat*  .  22  f. 


RESPONSIBILITY    OF    THE    STATE       187 

notions  of  prerogative.     What  is  lure  argued  is  the  ^imj  >]« 
thesis  thai  tln^  i->  legally  unneo      irj  and  morally  inade 
quad.     It   is  Legally   unnecessary   because,   in   fact,  no 
sovereignty,   however   conceived,   is   ireakened    by   Living 
the  life  of  the  law.     It  is  morally  inadequate  because  it 

exalte  authority  over    justice. 

It    would    not    persist    but    for    the    use   of   antiquarian 

terminology.     The  Crown  is  a  noble  hieroglyphic;  and 
it  is  not  in  the  Law  Courts  that  effort  will  be  made  to 

penetrate  the  meaning  of  its  patent  symbolism.  Crown 
in  fact  means  government,  and  government  means  the 
innumerable  officials  who  collect  our  taxes  and  grant  as 
patents  and  inspect  our  drains.  They  are  human  beingl 
with  the  money-bags  of  the  state  behind  them.  They 
are  fallible  beings  because  they  are  human,  and  if  they 
do  wrong  it  is  in  truth  no  other  derogation  than  the  ad- 
mission of  their  human  fallibility  to  force  responsibility 
upon  the  treasury  of  their  principal.  To  avoid  that 
issue  results  not  merely  in  injustice.  It  makes  of  au- 
thority a  category  apart  from  the  life  that  same  author- 
ity insists  the  state  itself  must  live.  By  its  sanctifi- 
cation  of  authority  it  pays  false  tribute  to  an  outworn 
philosophy.  "Whatever  the  reasons  for  establishing 
government,"  said  James  Mill,1*  "the  very  same  are 
reasons  for  establishing  securities."  It  is  this  absen 
of  safeguards  that  makes  inadequate  the  legal  theory  our 
courts  to-day  apply.  Nor  has  it  even  the  merit  of 
consistency;  for  the  needs  of  administration  have  neces- 
sitated governmental  division  into  parts  that  may  or  may 
not  be  sovereign  or  irresponsible  without  regard  to  logic-. 
The  cause  of  this  moral  anachronism  may  be  imbedded 
in  history;  but  we  must  not  make  the  fatal  error  of  con- 
is:  Essays  reprinted  from  the  Encyclopedia   Britannica,  V. 


L88       RESPONSIBILITY    OP    THE    ST  11  E 
founding  antiquity  with  cxperieno       Wt  lire  in  ■  new 

world,  and   a   new    theory   of    I  lit-  state   is    m(t>s.iiv    to    its 

adequate  operation.     Th€  head  and  center  ol  practical, 
of  ipeculatiye  effort,  nroii   1"    the  tranalation  ol  the 

Factl  of  life  into   Hie  theories  of  law.      The  (Hurt    to   this 

end  is  slowly  coming;  hut  u<  have  not  \.t  taken  to  heart 
the  harden  of  its  teaching.     The  ghost  of  <>!d  Rome, 

in    rlobbes1    iua-d< rpicre   of    phrase,    still    sits    in    triumph 

upon  ruini  ire  might  fashion  anew  into  an  empire. 


'HIE  PERSONALITY  OF  ASSOCIATIONS* 


The  state  knows  certain  persons  \*h«>  arc  n<>t  men. 
What  is  the  nut iirc  <>f  their  personality?  \n  they 
merely  fictitious  abstractions)  collective  names  thai  hide 
from  us  the  mass  of  individuals  beneath?  la  the  name 
that  gives  them  unity  no  more  than  ■  convenience]  ■ 
means  of  substituting  one  action  in  the  courts  where, 
otherwise]  there  might  be  actions  innumerable?  Or  is 
thai  personality  real?  I-  Professor  Dicey  right  when 
he  urges  1  thai  "whenever  men  act  in  concert  for  a  com- 
mon purpose9  they  tend  to  create  ■  body  which,  from  no 
fiction  of  law  hut  from  the  very  nature  of  things,  diff<  rs 
from  the  individuals  of  whom  it  is  constituted99?  Does 
our  symbolism,  in  fact,  point  to  some  reality  at  the 
bottom  of  appearanc  If  we  assume  thai  reality,  what 
consequences  will  flow  therefrom? 

Certainly  no  lawyer  dare  neglect  the  phenomena  of 
group  life,  even  if  on  occasion  he  denies  a  little  angrily 
the  need  for  him  to  theorise  about  them.  For  man  i>  so 
essentially  an  associative  animal  that  his  nuture  is 
largely  determined  by  the  relationships  thus  formed. 
The  churches  express  his  feeling  thai  he  has  need  of  re- 
ligion.    His  desire  for  conversation  and  the  newspapers 

•  Reprinted  from  tin-  Harvard  Low  RtvlfSfj  Vol  XXIX.  Net  \. 

1    Laic  nn<f  Public  Opinion,  [>.    1' 

I  Sec,  for  instancr,  II.  A.  Smith,  Lara  <>f  dttOCJationi  (  l!'H), 
p.   129. 

13'J 


iio       PERSONALITY    OF    ASSOCIATIONS 

nlti  in  Hi-    i  itablishmenl  of  clubs.     Tin    necessity  of 
locia]  ormiiizatini         i  birth  to  the  itate.     Ai  lu>  con 

iiinri.il  i  lift  i|»iim    hr^.in    to  anniliilaf  i    di  -lane.  .   tin-   t  in  I 

ing  company  came  into  being.     It  would  not,  one  orgi 

In    o\.  r  emphasis  to  I    that    mi  <  \t  i  \    spin  ,«■  of  human 

activity  associations  of  sonic  kind  an    to  In    found*      Tl 

an  the  m  iv  life-breath  of  the  community. 

And,  lomehow,  "<■  are  compelled  to  personalize  th- 
as.sociations.     Tiny  demand   their   possessive   pronouns; 

the   church    has   "its"   bishops.      They   govern   a    singular 

rerb;  the  railway  company  "employs"  lervants,  The 
United  States  of  America  is  greater  than  all  Americans; 
it  becomes  ■  single  individual)  and  fraternises,  Jonathan- 
srise,  with  ■  John  Bull  in  whom  all  Englishmen  have  their 
being.  The  Bank  of  England  is  —  the  phrase,  rarely, 
is  remarkable  —  the  "little  old  lady  of  ThreadneecQe 
Stmt";  but  no  one  would  speak  of  leven  distinguished 

merchants  as  a   little  old   lady.      The  House  of  Commons 

is  distinct  from  "its"  members,  and.  do  less  clearly,  it  is 
not  the  chamber  in  which  they  meet.     We  talk  of  "i*>" 

'Spirit"  and  "complexion"  :  a  general  (lection,  mi  wt  say, 

changes  **ifs"  "characfc ar."     Eton,  we  know  vrell  enough, 

is    not     sj\    hundred    boys,    nor    a     collection    of    ancient 

buildings.  Clearly,  there  is  compulsion  in  our  personal- 
izing. We  do  it  because  we  must.  We  do  it  because 
ire  fed  in  these  things  the  red  blood  of  a  living  person- 
ality. II«re  are  no  mere  abstractions  of  an  over-exu- 
berant imagination.  The  need  is  SO  apparent  as  to 
make   plain   the  reality  beneath. 

i  Ob  the  relation  between  Individual  personality  and  social  groans 

the  r.idcr  will  find  much  of  deep  interest   In   Wilfred   Richmond, 

Pfrfnnnliti/  a*   a    PhUotOpkteal    /,rinrij,l*>    (19<>0).      I    perSOBallj    OWi 

much  to  this  fascinating  book. 


PERSONALITY    OF    ASS()(  I  \TI<)\  1  11 


ii 

\nu  lawyers  are  practical  men  dealing  with  tin-  \«ty 
practical    all'airs   of  cvi  rulav    lift,   and    thcv   do    not    hk.  , 

in   Lord   LincQey's   phrase,4   "to   introduce   metaphysical 

subtleties  irhich  arc  needless  ami  fallacious."  The  Law, 
to  tin  v  will  say,  know>  persons;  by  Act  of  Parliament  * 
"persons*1  may  include  bodies  corporate.  Persons  are 
the  subjects  of  rights  and  duties  which  the  courts  will, 
at  need,  enforce.  If  a  body  corporate  i>  a  person,  it  will 
also  he  the  Bubjecl  of  rights  and  duties.  If  it  is  a 
person,  it  is  so  because  the  Btate  has  conferred  upon  it 
the  gift  of  personality;  for  only  the  state  can  exercise 
that  power.  And  the  terms  of  such  conference  ar«-  strictly 
defined.  The  corporation  is  given  personality  for  cei 
tain  purposes  to  he  found  in  its  history,  in  its  charter, 
its    const  it  ut  ing   act,    its    articles    of    association.     The 

courts    will    say    whether    certain    acts    come    within    those 

purp  whether,  to  use  technical  terms,  they  are  intra 

or  ultra  :ircs.      This  limitation   is   in    the  public  interest. 
"The    public,*1    so    the    courts    have    held,'    "is    entitled    to 

hold  a  registered  company  to   its   registered   business/1 

The   company    lias   a    personality;    but    it   has   a   person- 
ality capable  only  of  very  definitized  development. 

Why  is  it   so  limited?     English  lawyers,  at   any  rate, 

ha\e    no    doubt    upon    this    question.      The    corporation    is 

the  creature  of  the  state.7     Its  will  is  a  delegated  will; 
4  Crtisens'  I. iff  Assurance  Co,  v.  Brown  [1904],  A.  <     128,  IM. 

6  52  &  n  vict,  en.  -       i!>. 

«   Atti>rntv-(  itiitral    r.    (irtat     I    |   ti-rn    \{y.    Co..    I..    H.    11    Cli.    D. 

MS,  r,ir.i  ( is?!)),  per  l.<>nl  BramwelL 

7  I.  «*.,  tiny  seoept  tin-  "(■(Miff— inn"  theory,  to  filled.  Th.it  they 
hivf  seeepted  tin-  "fiction  theory"  i^  denied  by  Sir  P.  Pollock  in  the 
/       Qwtrt.  /'<  r.  for  i!»i  i. 


148       PERSONALITY    OF    associations 

its  purpose  exists  onl\  luraibf  it  li  in-.. I  recognition. 

Ami,   10   the  lawyers   will    tend   to   imply,   it    i|   in   truth   ■ 

fictitious   tiling.     Persons,  they   know   will   enough,  arc 
human   beings;   the  corporation   i^   invisible  and   in  ah 
racto.      It   has  no  human  vrants.     "It  cannot,91  so  an 

American  judge  has  said,'  "eal  or  drink,  or  irear  cloth- 
ing, or  live  in  houses99 ;  though  hereto  a  sceptic  might 
retorl  thai  ■  theory  of  domicile  lias  given  some  trouble, 

and  ask  if  Uiere  ifl  not  a  solid  reality  aboul   the  dinnen 

of   the   Corporation    of    London.      "It    is,*'    said    Marshall, 

C.  .I.,1'  "an  artificial  being,  invisible,  intangible,  and 
existing  only  in  contemplation  of  law"   .    .    .   "it  is  pre- 

•    lely,99    In-    Bayfl    again,    "what     tin     act    of    incorporation 

makes  it.,,     "Persons,"  said  Best,  (  .  .1.,  in  1828,"  "who, 

without   the  sanction  of  the  legislature,  presume  to  act 

a>   a   corporation,  an-  guilty   of  a   contempt    of   the    King, 

by  usurping  on  his  prerogative.91 

Nor  are  the  textbook  writers  less  definite.      "They  are 
legal  persons,"  sa\s  Austin,1'  "by  a  figment,  and  for  the 

sake  of  brevity  in  discourse.99  "To  the  existence  of  all 
corporations,99  wrrote  Kyd  in  1798,11  tkit  has  long  been 

an  established  maxim  that"  the  King's  consent  is  abso- 
lutely nee.  isary.99  "Ten  men,99  notes  Professor  Salmond 
satirically,14  "do  not  become  in  fact  one  person  because 
they  associate  themselves  together  for  one  end  any  more 

«  Sutton's  Hospital  I       .i"  ('".  18  (1612). 
»  Daiiingtoo  v.  Mayor,  etc,  of  New   York.  B]   \.   v.   Lot,  197 
I  18S6). 

10   Dartmouth    College    9.    Woodward,    t     Wluat.    (U.   S.)    518,   ttfl 
(  WIS). 

H  Davergler  r.  PeOows,  S  Blng.  948,  96& 

i  Troatiit  i,n  Corporation*,  p.  n. 
i«  JnrUmrmdt  net    (ed   <>f  1902),  p.  800. 


PERSONALITY    OP    ASSOCIATIONS        u:\ 

than  two  horses  become  one  animal  when  thev  draw 
the  same  cart."  The  most  marked  distinction,*1  Mr. 
Holland  baa  irritten  in  ■  famous  textbool  "between 
abnormal  person*  is  thai  some  are  natural  .  .  .  while 
others  are  artificial  .  .  .  irhich  are  treated  bv  law 
for  certain  purposes  as  if  they  irere  individual  human 
beings." 

Sere  is  clear  doctrine  enough  —  a  vivid  picture  of  an 
all-absorptive  state.  But  vrhen  this  supposed  [imitation 
baa  oner  been  admitted,  it  is  evident  thai  tin  .state  i> 
compelled  to  do  remarkable  things  with  the  bodies  it  has 
called   into  being.     It    fails   to   regulate  them   with  the 

ic  thai  might  be  desired.  The  definition  of  ultra  vire$, 
for  example,  lias  become  a  formidable  problem;  there 
seems  not  a  Little  of  accident  in  the  formulation  of  its 
principles.     Corporations  will   have  a   curious   habit   of 

attempting  perpetually  to  escape  from  flic  rigid  bonds 
in  which  they  have  been  encased.  .May  we  not  saj  that, 
like  some  Frankenstein,  thev  show  ingratitude  to  their 
creators:  Or,  as  artificial  things,  must  we  deem  them 
incapable  of  such  thought?      A    corporation   will   possess 

itself  of  an  empire]  and   resent1    interference   with   its 

domain.     An    American    colony   will    incorporate   itself; 

and  when  its  creator  shows  Blgns  of  wanton  interference, 
will  take  the  had  in  rebellion  against  the  state  which, 
in   legal   theory,   at    any   rate,  gave   it    birth.      Truly   the 

supposed  sovereignty  of  the  state  is  not  apparent  in  the 
relations  thus  discovered.     Hie  orthodox  doctrine  needs 

somewhat  closer  examination   before  we  accept    its  truth. 
U  Jnrispni'h  vr,  .   II   «•(!.,  j>.  .'is.'j. 

i«  J.  s.  Mill,  Antobtofrapky,  p.  1 1 


1  M       l'l  RSON  \\.\\\    OF    ASSOCIATIONS 

in 

Hut  eren  when  wt  bar<    m  examined)  there  Are  asso- 
ciations which  technically  at  hast  ;u<   not  corporations. 
That  trust  irhich  Alaitland  taughl  us  to  understand 
-()  t ypicall y   English  will  embrace  many  of  them  under 

its    all-protecting    fold.      Contract,    as    in    the    club,    will 
count    for  much,  and   with   the  aid  of  B   little   fiction  w< 

need  bave  no  fear  <>f  theory.     A  mighty  church  will  in 

Scotland  he  a  trust   and   not   a  corporation*      In   America 

the  operations  of  certain  trusts  irhich  are  not  corpora- 
tions   will    necessitate    a    famOUfl    Act    of    Congress.       1  or 

otherwise  they  can  hardly  come  into  the  courts.     They 

haye  no  name  by  which  to  be  sued.  To  the  law,  they 
are   not    persons,    ha\e    no    personality;    they    are    bodies 

unincorporate,  bodies  —  the  thought  is  charmingly  Eng- 
lish—which  arc  bodiless.  Yet,  curiously,  the  technical 
formulae  do  not   by  their  absence  reveal  any  essential  lack 

of    corporate    character.      The    Stock    Kxchan^e    has,    in 

any  real  meaning  <>f  the  term,  a  personality  as  assuredly 

effective  as  that,  of  Lloyds.  If,  to  the  law,  thev  are 
essentially  distinct,  to  practical  men  and  women  it  iCCPM 
Useless  to  insist  on  the  distinction  as  other  than  an 
empty    formalism.      The    Stock     Exchange    is    simply    a 

property  rested  in  trustees  for  the  benefit  of  a  few  pro- 
prietors.    Is  it?     Dare  those  trustees  use  it  as  property 

in  that  unpublic  sense?  Dare  they  SO  claim  it  and  re- 
tain the  respect  of  men  with  eyes  to  see?  The  technical 
distinction  only  made  Archbishop  I, and  impatient  when 
a    Puritan    trust    had    ruffled    his    temper.1.       Sour    Bishop 

Montague  who  avowed  thai  he  had  "spent  some  time  in 

17  t  Gardiner,  fffctory  of  England,  p.  268,    Cf.  Mait  land's  intro- 
duction to  Gh'rke,  PoliHral    Ili>,>rirs  of  the  Middle  Age.,  J>.  Si. 


PERSONALITY    OF    ASSOCIATIONS       145 

reading   bookes   of   tin*    Lawe,"   «a>    beside   himself  at    the 

onincorporate  character  of  Lincoln9!  lnn.u  Certain 
irordfl  of  condemnation  died  out  on  Lord  Kldorfs  lips 
irhen  he  thought  of  the  lilver  cup  tin-  Middle  Temple 
treasured.  Here,  m  it  seemed,  irai  rirtua]  corporate 
ness,  without  the  state's  blessing  ()f  incorporation. 
Wrong)  inav  be,  it  iras  thus  to  presume  on  kingly  right; 
yet,  of  ■  truth,  it  iraa  also  significant. 

Significant  in  what  sense?  In  the  sense,  ire  argue, 
that  legal  practice  has  unproved  on  legal  theory,  The 
judges  builded  better  than  they  knew;  or,  mayhap,  thej 
have  added  yei  another  to  tin  pile  of  fictions  so  charac- 
teristic of  English  law.     If  corporations  can  alone  come 

uji  the  front  stairs,  then  they  will  admit   tin-  unineoiporate 

association  at   the  hack.     For,  they  know    well   enough, 

the  life  of  the  state  would  be  intolerable  (lid  we  recognize1 
only  the  association  which  has  chosen  to  accept  the  forms 
of   law. 

Clearly  there  is  much  behind  this  fiction-making.  A  sov- 
ereignty   that    is    but    doubtfully    sovereign,    an    unineor- 

porate  body  of  which  the  bodiliness  may  yet  equitably  be 

recognized  —  certainly  our  fictions  have  served  to  eon- 
ceal  much.     What,  as  a  fact.  Is  their  justification?     Why 

do  they  -till  invite,  as  they  receive,  a  lip-given,  if  a  heart- 
d.  nit  d.  profession  of  faith? 

IV 

When  the  history  of  associations  which  have  been  tech- 
nically  incorporated  comes  to  be  written,  one  char  gen- 
eraliaation  as  to  its  tenor  during  the  nineteenth  century 
will  he  admitted:  the  courts  have  been  in  practice  incrcai 

18  2   liluck    Book   of   Lincoln*   Inn.   pp. 


146       PERSONALITY    OF    ASSOCIATIONS 

inglv  compelled  to  approximate  their  position  to  thai  of 
an  ordinary  individual.  The  hi*tor\  has  not  been  without 
iti  hesitations.  The  clear  and  vigorous  mind  of  Lord 
Hramwrll,  for  instance,  left    the  emphatic   mark  <>f  his 

client    from   its   tendency   written   deep   OH    English   law.lw 

The  evolution,  dating,  so  fur  us  onr  run  wr,  from  no 
earlier  time  than  the  forties  of  last  century,  of  the 
doctrine  of  ultra  vires,  has  in  many  stays  acted  as  a 
limiting  factor.  Certain  philosophic  difficulties,  more)" 
over,  as  the  significance  of  the  Mttu  rea  in  criminal 
liability,  have  proved  stumbling  blocks  of  a  serious  kind. 
Yet,  on  the  whole,  the  progress  is  char.  The  corpora- 
tion is  an  obvious  unit.  It  has  rights  and  duties.  It 
acts  and  is  acted  upon.  The  fact  that  its  actions  are 
of  a  Special  kind  is  not  to  prevent  the  courts  from  get- 
ting behind  the  visible  agents   to  the  invisible   reality.      If 

it  is  civilly  reprehensible,  it  must  bear  the  burden  of  its 
blameworthiness.  Should  it  be  guilty  of  crime  the  courts 
mil,  indeed,  be  Less  confident,  but,  as  we  shall  see,  the  thin 
edge  of  the  wedge  has  already  been  inserted.     It   needs 

but  a  little  courage,  and  the  reality  of  corporate  crime 
will   pass  the  current   coin  of  legally  accepted  doctrine. 

Let  us  look  at  this  tendency  in  some  little  more  detail. 

Let    us   take,  as   a    starting   point,  the  corporate   seal.      It 

is  but  three  quarters  of  a  century  since  Etolfe,  B.,  « 

laving  down  with  emphasis  that  the  seal  was  "the  only 
authentic  evidence  of  what  the  corporation  has  done  or 
agreed    to   do."    '      Within    thirty   years    that    doctrine   is 

iB  6         peefauly  lii-  resaarks  In  Abrattj  v.  North  Batten  Ry.  Co., 

M7,  -'■>-'  ( 1886). 

Mr    <  \.rr    in    hit    brilliant    eSSSV    00    the    Law    of   Corporations 

dates  its  origin  from  Coftman  v.  Batten  Coontles  Ry.  Co.,  i(>  U  J. 
(Ci,  ,  7;  (1848).    1  save  been  unable  to  bad  sa  earlier  ease. 

.  ,,;  1  u.iion  v.  Charlton,  6  slee.  ft  W.  811  (1840). 


PERSONALITY    OP    ASSOCIATIONS        14! 

obsolete.  TTie  seal,  Cockburo,  C.  J.t  will  declare!  as 
it  m.iiis  to  ill  almost  light  I  v,  "m  ■  relic  of  barbarous 
antiquity,*1  ami  will  establish  thai  the  contracts  «>f  ■ 
trading  corporation!  made  in  pursuil  <>f  trade  purposes, 
do    not    need    that    "only   authentic   evidence91   ol   which 

Efolfe,    B.,    had    spoken.      Nor    has    Parliament     been    less 

generon  It  is  not  noi  necessary,  ire  Itnoi  further,  to 

use  the  seal  in  contracts  of  daily  occurrence."  Nor  mai 
the  absence  of  the  Beal  be  used  to  defeal  the  ends  of 
justice.  Work  performed  for  purposes  incidental  to  the 
corporate  end  must  be  paid  for  even  when  the  contract 
is  unsealed  and  the  corporation  public  in  its  nature.  If 
Parliament  lavs  it  down  thai  urban  authorities  in  their 

.sanitary    pursuits M    must    use    the    seal    for    all    contracts 

over  £50  in  value,*'  that,  is  an  exception  Bufficienl  in  itself 

to  validate  the  general   rule;  nor  do  we   feel   aught   save 

harshness  in  Lord  Bramwell's  grim  comment  upon  its 
enforcement  .28 

The  change  is  worth  some  little  thought.  We  end  the 
Century  with  a  doc-trine  almost  entirely  antithetic  to  that 
with   which   it   began.      The  seal,  once  BO   lauded   as   alone 

authentic,  a  Chief  Justice  dismisses  as  barbarously  an- 
tiquated. \Vh\  ?  The  inference  is  clear.  The  seal 
hinders  the  free  play  of  corporate  activity,  just  as  the 

South    of    Ireland    Colliery    CO.    7'.    Waddle,    L     H.    4    r.     P. 
(.17  (  1869) 

ta  80  ft  81  Vict,  c.  131,  §  137. 

m  wviis  v.  Mayor,  etc  of  Klngston-apon-Hall,  U  H.   10  C.  P. 

ci.irke  r.  Cuckfidd  Union,  '-'i  L.  J.  (Q.  B.)  840  (1888)]  Law- 
ford  v.  BUlerlcaj  Rural  District  Council,  L  H.  [1008],  i  K.  B.  TO, 
Tin-  limitation  is  thai   of  Joyce,  J.  Douglus  v.   Uhyl   Urban 
Diftrld  Council,  L  It.  [1918]  9  Cn.  :i<>7. 
w  H  ft  80  Viet,  «•.  r>r>,  |  174 
28  Young  ft  Co.  v.  Major,  ete,  of  Leamington,  B  A.  c.  517  (1888). 


ih       PERSONALITl     OF    ASSOCIATIONS 

robes  (»f  state  bide  beneath  them  the  humanity  of  ■  kin^. 

And    JUl1    M    the    latter    will    have    his    w  i  i  In  I  raw  i  ii^-  r«  mini, 

where,  free  from  ceremonial,  he  111113  l><  himself,  >o  will  tbe 

COri    « 1  . 1 1 1 1 >  1 1    put    off    iti    leal    that     (if    we    may    invoke    u 

relic  of  barbarous  anthropomorphism)  ita  limbs  may 
have  free  play.  The  corporation  acts,  s<  J  or  no  leaL 
So  it  is  1  - i »_r  1 1 1  that  the  courti  should  look  beneath  the 
■tiff  encasement  of  formalism  to  the  living  reality  which 
moves  t  h»  1 

\\  1  turn  to  contract.  We  approach  it  warily,  1 
litir  i>  the  bead  and  center  of  fictional  security.  Here, 
p i-  shall  be  told,  it  Is  finally  made  evident  thai  the  cor- 
poration exists  nowhere  save  in  legal  contemplation* 
l  r  what  do  we  find?  Take  first  the  association  incor- 
porate by  Act  of  Parliament.  Beyond  the  four  corners 
of  its  articles  of  association  no  movement  is  possible.** 
Even  the  corporation  which  the  common-law  prerogative 
has  made  will  have  limitations  upon  its  capacity.  It 
cannot  do  what  it  will.  It  has  been  created  for  a  spe- 
cific purpose.  It  must  conform  to  that  purpose,  because 
it  is  the  creature  of  those  who  called  it  into  being.* 

\<>w  this  theory  of  itltni  rir<  s  is  fundamental  in  t  In- 
law of  corporations.  What  is  to  be  said  for  it:"  This, 
of  a  certainty,  that  it  is  in  some  wise  needful  to  protect 
the  corporators.  A  man  who  gives  bis  money  to  a  rail- 
way company  does  n<>t  expect   it   to  engage  in  fishing; 

he    ought     to    be    protected    against    Such    activity.      Hut 

an  act  incidental  to  the  purposes  <>f  the  company  is  not 
29  \  tii.ury    EUOwaj   Carriage   Co.   9.    EUche,    L    K.   7    H.    L 

so  But  §  9  of  the  r<>mpani«-s  Consolid.ition  Act  of  1908  allows  the 

■Iteration   <»f  the   PKuweandaia   bj    special    resotatlon.    This   is  a 

great  tdl  hi 


PERSON  \LI TY    OF    ASSOCIATIONS        I  HI 

ultra  ritrs.     What  i>  ><>  incidental?     It  is  incidental  ♦<> 

the    business   of    the    Sou 1 1 1    Walo,    Kail\va>    Company    to 

run  iteamboats  from  Milford  Haven;      bul  thai  function 
w.i        riniiiglv    beyond    the    competence    of    the    Gn 
Eastern*       One  steamship  company  may,  without    Inn 

(Iran  11  all  its  vessels;      bul  another  Company  in  ik-  > 

the  mistake  <>f  retaining  two  <>i  its  boats,  and  its  act   i 

without     the    law,   '      There    were    two    railway    coinpanif. 

within  recent  memory  which  agreed  to  pool  their  profits 
and  divide  them  with  judicial  blessing;  but  two  othei 
railway  companies  Bpeedily  discovered  their  powerlei 
ness  when  they  attempted  partnership.*  It  is  fitting, 
so  the  courts  have  held,  that  Wigan  and  Ashton  should 
supply  their  citizens  with  water;   '  but  there  was,  m  we 

may  Suppose,  something  unfitting  when  Southampton  and 

Sheffield  attempted  thai  enterprise.  Bul  perhaps  tin- 
nadir  of  such  confusion  is  seen  by  anyone  who  contrasts 
Stephen*  v,  My$ort  Reefs,  etc,  Co.,  Ltd,     with  Pedlar 

v.  l{(uul  Block  Gold  Mines  of  India,  Lid.4" 

Logic  here  there  certainly  i>  not,  though  the  basifl  of 
the  distinction  is  easy  to   understand.     "Where  a  eor- 

n  South  Wales  Ry.  Ca  v.  Redmond,  10  C  B.  n.       676   (1861). 
ii  Colin  in  v.  Eastern  Counties  Rj    I  ■  «.  10  Bear,  i   (1846). 
u  Wilson  v.  Mien,  10  C.  B.  n.  s.  848  ( 1861). 
m  Gregory  v.  Patchett,  88  B<  16  (1864). 

Hare  v.  London  &  \.  W.  Ry.  Co,  -  J.  &  H.  80  (i*(.i). 
Charlton    r.    Newcastle    <!v    Carlisle    Ry,    ('«».,    B    .iwr.    n.    s. 
■■.   (  1869). 

37  Bateman  v.  Mayor,  etc.  of  AshtonHinder-Lyne,  •'{  II.  &  N  :i2>\ 
(18.58),  and  attorney-General  v.  Mayor,  etc  of  Wlgan,  -r>  DeG.  M.  & 
G.  H  (1864). 

attorney  ('■<  neral  v.  Andrews,  2  Mae.  a  c;  ■J-,.">  (1850);  siu-ftiold 
Watenrorki  Co  n.  Carter,  B  Q.  B.  688  I  1882). 
«»  L.  H.  [1902]    1   Ch.  7 15. 
••  I..  H.  [1906]  -  Ch,  »-■:.    S  illy  the  remarks  of  Warrmg- 

ton,  J.,  at  p.  Ii7. 

I 


UK)       PERSONALITY    OF    ASSOCIATIONS 

poration,"  said  Colo  ridge,  .1.,"  *im>  been  created  for  the 

pmpOM  of  carrying  «"i  a  particular  trade)  or  making 
a   railuav   from  OM   place   to  another,  ami    it    attempts   to 

substitute  another  trade,  or  ti>  make  its  railway  to  an- 
other place,  the  objection  is  to  Lti  entire  iranl  of  power 

for   the  new    purpose;   its   life  and   function^   air   the  en   i 

tion  of  the  legislature;  and  thejf  do  not  ezisi  for  any 
other  than  the  specified  purpose;  for  any  other,  the  mem- 
ben  are  merely  unincorporated  individuals.*1  Bui  the 
doctrine  results  in  manifest  injustice.  A  company  has 
l>y  its  charter  the  right  to  borrow  not  more  than  a 
specified   ram;   it    borrows   more.     It    is   held    thai    the 

lenders  cannot  sue  for  the  surplus.4'"'  Yet  it  is  obviously 
unjust  thai  a  corporation  should  thus  benefit  by  an 
error   of   which    it    has    been    cognizant.      It    is    surely    an 

unwise  restriction  of  business  enterprise  so  closely  to 
restrict  the  interpretation  of  powers  as  to  refuse  a  com- 
pany the  legal  benefit  of  its  commercial  capacity  to 
build  a  railway."  A  corporation  can  be  prevented  from 
Contributing  to  a  charity;41  it  may,  on  the  other  hand, 
show  gratitude  to  its  servants. u  It  is  clear  enough  that 
we  have  no  straight  rule  of  construction  to  guide  us. 
It  is  held  that  a  corporation  "may"  not  do  certain  things. 
Does  that  imply  that  if  should  not  have  done  bo,  or  that 
it    is    legally    incapable  —  "stricken    with    impotence"    is 

4i  Major,  etc.  of  Norwich  r.  Norwich  Ky.  Co,  t  K.  &  B.  8S7, 
432   (1K55). 

*■-  WYnloek   r.  River   Dec  Co.,  10  A.  C.  354    (1KS5). 

4:<   As  in  the  jrrcat    Ashbury  CMd 

«<  Toinkinson   r.  South    Baitern   Bj.   Co.,   I..    H.   B6  Ch.   n.   I 
(1887). 

«•'•  HampSOB  v.  Prir<  \  Patent  Candle  ('.».  And  \<t  ;m  able  writer 
can  .irLriir  that  the  odltenCC  of  corporate  g  rat  it  ude  dOM  n<>t  COUM 
within  the  lawyer's  purview.     Smith,  Lnxc  r>f  Association*,  pp.   130-1. 


PERSONALITY    OF   ASSOCIATIONS        151 

a  distinguished  lawyer's  forcible  phrase M  —  of  doing 
them?  li  an  ultra  vite$  act  do!  ■  corporate  act?  The 
courts  would  s< ,  in  to  uphold  thi^  view,  "The  question 
i>  not,"  said  Lord  Cairns  iii  the  Ashbury  ci  "as  to 
the  legality  <»t"  the  contract;  tin-  question  i>  as  to  the 
competency  ami  power  <>t"  the  company  to  make  tin-  con 
tract.9'  Hut  that  is  not  a  \ i-ry  helpful  observation  irhen 
it  i>>  borne  in  mind  that  ult rn  lirt.s  acts  are  performed 
every  day.  And  if  the  courts  hold  such  acts  <i  prion 
illegal,  why  do  they  time  and  again  enforce  them  in  order 
to  prevent  harshness?  Es  not  that  a  virtual  admission 
of  their  corpora teness?  Such  admission  can  only  mean 
that  in  tin-  great  realm  of  contract,  as  in  the  case  of 
the  seal,  we  cannot  confine  the  personality  of  a  corpora- 
tion within  the  four  walls  of  a  document.  \Y»  arc  in 
fact  compelled  to  ahandon  the  doctrine  of  special  capac- 
ity.      We   have  to  admit    that    a    person,  whether   a  gTOUp 

person  or  a  human  being,  acts  as  his  personality  war- 
rants. Le^al  theory  may  deny  the  fact  of  a  contract 
which  has  obviously  taken  place;  but  in  that  event  it  i^ 
Only  SO  much  the  worse  for  legal  theory. 

For  it  results  in  the  divorce  of  law  and  justice.  A 
corporator,  for  instance,  severs  his  connection  with  a 
corporation  in  a  manner  that   is  ultra  vires;  ten   years 

later  he  IS  held   responsible  for   its  debts.41      Of  a   surety, 

no  man  will   claim  justice  or  sweet    reasonableness  for 

such  an  attitude.     The  courts,  again,  in  the  case  of  a 

man   u  ho  has   made  a   contract    and    then   fceU    it    irksome, 

will  not  admit  the  plea  that  he  was  originally  incapable 

46  Mr.  K.  BfanSOfl  in  VI  Bwoycloptdia  of  tli>  Laws  <<(  En-iUinJ, 
1  <d.,  }).  BOO. 

<■  Ashbnrj  Railway  Carriage  ('<».  v.  Riche,  L  K.  7  II.  L  I 
OVa  (is:.r,). 

<*  jn  r,  Stanhope,  ■  ;  DeG,  ft  Sol  l'Jb  (l&so). 


159       PI  RSONALFTC    OF     ASSOCIATIONS 

of    making    it.      Tiny    M  ill    MJ    uitli    Wilinot,    ('.    ,1.,    that 

"no   polluted   hand   shall    touch    the   DUTC   fountain  of    jus- 

Hut    if    the    hand    he    a    corporate    hand,    as,    for 

instance,  In  Hall  \.  Mayort  <•/<•.  oj  Swansea ,r,°  tin  v  would 
have  do  hesitation  in  admitting  the  pollution. 

What    are  ire   to   saj       Only   one   thing  surely,   and 

that    is  thai    the  doctrine  of  ultra  V9T6S  breaks  doWD   when 

it  is  tested.     It   la  no!   true  because  it   fails  to  conform 
to  the  canon  of  scientific  hypothesis:  it  does  not  fit  tin- 
ts.    \\'i    assume  the  artificiality  of  our  corporation. 

\Y.     suppose    that     it    is    no    more    than    we    have    made    it, 
with    the    result    that    common    sense    must    be    thrown    to 

the  winds.     What,  in  brief,  the   theory  compels  us  to 
urge  is  this,  thai  a  class  of  acts  may  be  performed  by 

the  corporation  which  are  not  corporate  acts.      I>  it  not 

better  to  risk  a  little  for  the  sake  of  Logic?     Our  fiction" 

theory   may,  indeed,  break  down;  but    we  shall   bring  the 

law  in  closer  harmony  with  tin-  tacts  of  life.     We  shall 

tlnm  say  that  the  corporation,  being  a  real  entity,  with 

a    personality    that     is    self-created,    must    bear    the    re- 
sponsibility for  its  actions.      Our  state  may,  in  the  result, 

be  a  little  less   Hegelian,  a  Little  less  sovereign  in  its 

right    of  delegation.      Therein   it   will   only   the  more  cer- 
tainly make  a  direct  march  upon  the  real. 


The    corporation    has     rights    and    liabilities    in    tort. 

Here,  again,  the  tendency  has  been  more  and  more  to 

make  it   approximate  in  situation  to  the  ordinary  individ- 

ual.     So  long  ago  as  the  reign  of  Henry  VII  the  oor- 

4»  colli,,     i     Blaatem,  2   Wilson  311,  350  (1767). 
co  i  (,.    i         i  (1844). 


PERSONALITY    OF    ASSOCIATIONS        163 
poration  could  bring  an  action  for  in  -pass.''1     win  i 

patron  of  a  living  it  could  bring  an  action  of  quart 
imptdit.         It    can    SU€    for    libel    where    it    can    show    tint 

its  property  is  affected,     though  it   is  oof  clear  thai   it 

could  iuc  for  words  spoken  in  derogation  <>f  it>  honor 
or  dignity.       This  is,  10  w*  are  told,  due  to  tin-  physical 

limitations   to   which    it    is   subject.      "It    could    not    mi 

said  Pollock,  ('.  B.f  "in  reaped  of  an  imputation  of 
murder,  or  incest,  or  adultery,  because  it  could  not  com- 
mit those  crimes.      Nor  could  it   BU€  id  n  -|"  Ci   of  a  char. 

of  corruption,  lor  a  corporation  cannot  he  guilty  of 
corruption,  although  the  individuals  composing  it  may.*1 

But  IS  this,  in  fact,  true?      No  one  would  think  of  chat 
ing  an  association  with   incest   or  adultery.      Hut    it    can 
be   sued   for   malicious   libel,      for   assault   and    imprison- 
ment,'7 for  fraud  and  deceit,8*  and,  after  a  long  struggle 

in  which  the  formidable  Lord  BramweU  played  a  note- 
worthy part,  for  malicious  prosecution.**    Now  when  this 

formidable  list  of  torts  is  considered  it  seems  curious 
to  say  that  the  corporation  cannot  .sue  for  libel  thai 
touches   its   honor   or  dignity.     The    reason;   BO   far   as 

one    can    see,    is    twofold.      It     is,    in    the    first    place,    as- 

■1   Y.   B.  7   Hen.  VII,  pL  9. 

82  Chancellor,  etc.  of  Cambridge  7-.  Norwich,  22  Viner\  Ahr.  5 
(1617). 

m  Metropolitan  Saloon  Omnibus  Co.  v.  Hawkins,  t  H.  &  N.  fl7 
(18.",'));  South  Metton  Coal  Co  v.  North-Eastern  News  A-"n,  L  EL 
[iM»t]   1  ().  B.  lit. 

64  Mayor,  etc*  of  Manchester  v.  Williams,  L  K.  [1891]  I  Q   B,  94. 

55  Metropolitan  Saloon  Omnibus  Co,  v.  Hawkins,   i   M    \   S,  s7 

(!*.->!•),   at    p.   f»(». 

Whitfi.-hi  r.  Soutli-Rastern  Ry.  ('"..  -•:  L  .»..  (Q.  B.)  229  (1868). 
67  Bastern  Counties  Ry.  Co.  v.  Broom,  <;  Bach,  814  (1861). 
ss  Berwick  p.  Bng.  Joint  Stock  Bank,  1..  R.  _'  i  -  (1867). 

i  itizens'  Life  assurance  Co.  v.  Brown  [\^n\.   \.  (     u  t,  US. 

The  story  of  the  Struggle  Is  well  told  in  Mr.  Cirr'.s  hook,  j>{>.  ?s  s; 


154       PERSONALITY    OF    ASSOCIATIONS 

■timed  ipSO  factO  that  the  corporation  lias  no  mind  to 
f<.|.  It  is  no  more  than  a  way  of  dialing  with  certain 
rights   in    property    in   such   a   \\a\    that    t  h<  v   can   he   COO 

reniently    protected    by    tin    court-.     The   doctrine   of 

a^ciu'v,    moreover,    is    used    as    a    means   of   Avoiding    the 

complex   metaphysical    problem  of   what    is   behind   the 
rent.     Thii  iras  well  shown  in  Lord  LincHey'i  remark- 
able judgment    in  Citrons'  Lift    As.sunutct'  Co.  v.  Hnncn. 

"If  it  is  once  granted,**  he  .said,  "thai  corporation!  are 
for  civil  purposes  to  he  regarded  as  persons,  ».  c  as 
principals  acting  by  agents  and  servants,  it   is  difficult 

to  N  I    why  the  ordinary  doctrines  of  agency  and  of  nn 

ter  and  servant  are  not  to  be  applied  to  corporations  as 
well  as  to  ordinary  individuals.99    In  that  case,  clearly, 

the  actual  tort  is  the  act  of  the  agent  and  the  principal 
is  reduced  to  a  mere  fund  from  which  adequate  compensa- 
tion may  be  obtained.  But  is  that  in  truth  a  satisfac- 
tory method  of  procedure?  Are  the  "metaphysical  sub- 
tleties99 of  which  Lord  Lindley  spoke  so  deprecatingly 
in  truth  "needless  and  fallacious?11  I-  it  not  in  fact 
necessary  to  have  some  clear  view  of  their  nature  if  a 
true  decision  is  to  be  reached? 

In  order  to  see  this  aspect  in  a  clear  light  let  us  turn 
to  the  criminal  liability  of  corporations.      It   is  now  well 

established  that  ■  corporation  may  be  indicted  for  mis- 

fcasanc         for   obstruction,''    under    the    Lotteries    Act' 
(though   here  the  courts  refused  to  admit    an   indict  merit 

of  the  corporation  as  a  rogue  and  vagabond),  for  selling 

impure   food  '      and   for  adulterating  milk."4      Bui    in   all 
™  Quern  r.  Hinninjrhssn  &  Clour.  By.  Co..  :?  Q.  R.  22:1   (1812). 

m  Queen  7'.  Grafl  North  of  England  Ry.  Co,  I  Q.  B,  :n.->  (I8i6). 
«=  Hnwkc  7'.  Hnlton  &  Co,  L  R.  [WW]  9  K.  R.  93. 
«»  Pearks,  etc,  r.  Ward,  L.  R.  [1909]  9  K.  B,  I. 

•«  Chutcr  r.  Fret-th,  etc.,  L.  U.  [1911]  2  K.  B.  832. 


PERSONALITY    OF    ASSOCIATIONS        l 

these  ct        conviction   has  been   obtained   on   the   l»> 
of  a  supposed  Liability  f<n-  an  agent'i  act*     This  is  irell 
brought  out  in  s  remark  ol  Alverstone,  C«  .J.,  "I  tliink 
thai  we  ought  to  hold  that  a  corporation  msvy  be  liable 

.     .     .    unless    incus    rea    is   nccessarj    in   Older    to   COnstl- 

tute  the  offence.*1  But  that  is  the  exact  point.  I>  ■ 
corporation  to  be  held  guiltless  where  the  presence  of 
metis  tea  is  necessary  to  the  crime?  A  laundry  company 
fails  adequately  to  protect  iti  machinery  in  accordance 

with  law,  and  one  of  its  employees  is  killed.     There  i 

clear  criminal  negligence;  but  on  an  indictment  for  man- 
slaughter the  judge,  a  little  reluctantly,  refused  to  allow 
the  action  to  proceed."  In  the  next  year  a  railway  com- 
pany caused  the  death  of  some  of  its  passengers  through 
not  keeping  a  bridge  in  proper  repair;  here  again,  though 
with  obvious  difficulty,  the  court  thought,  the  demurrer 
must  be  admitted.*7  Clearly,  the  problem  of  whether  a 
corporation  can  have  a  mens  rea  has,  if  sometimes  a  little 
doubtfully,  been  answered  in  the  negatn  Taken  with 

the  cases  in  tort,  we  must  collect  the  opinion  that  it 
cannot  have  a  mind  at  all. 

VI 

Yet  we  cannot,  in  fact,  do  without  that  mind.  X\\>\ 
M  we  have  been  compelled  by  the  stern  exigencies  of 
events  to  recognize  that  the  corporation  is  distinct   from 

«s  Cited  in  IVarks,  etc.  r.  Ward,  L.  EL  f  1 902 ]  'J  K.  \\.   1,  at  p.  8. 

««  Queen  r.  (inat  West.  Laundry  ('»>.,  18  Manitoba  Rep.  66 
(1900). 

«t  Union  Colliery  Co.  r.  II.  If.  The  Queen,  31  Can.  Sup.  Ct. 
81    (inoo). 

«»  IYrlinps  Lord  BoWCO  In  Queen  v.  Tyler  &  International  Com- 
mrreial  Co.,  Ltd.,  felt  tome  difficulty  also.  L.  H.  [1891 J  %  Q.  15. 
588.     See  cspcciully  pp.  59'2,  591,  596. 


i:,6       PERSONALITY    OF    ASSOCIATIONS 

its  members,  ><>,  loo,  we  have  to  recognize  thai  it-  mind 
is  distinct    from   then-  mm<N.     A   corporation  \«>t< i   an 

aninial   pension   i<>  »i  servant;  its  gratitude  II   not    merely 

t h«  gratitude  of  the  individual  members  expressed  in  ■ 
single  t. nil,  for  one  of  those  membera  will  endeavor  to 

Main   its  generosity.'         So  it   may  will   be  Urged  in  the 

cases  of  manslaughter  noted  above  ■  penalty  ought  to  be 
exacted  in  some  irise  commensurable  with  tin  offen< 
When  we  talk  of  ■  company  as  ■  "had  master,'1  there 
is  surely  reality  behind  thai  phrase.  Individually  its 
members  are  probably  meek  and  kindly;  but  the  company 
is  differently  constituted.  Where  that  "badness"'  p&s 
into  the  region  in  which  it  becomes  criminally  culpable, 
the  company  ought  to  suffer  the  penalty  for  its  blame- 
worthiness.    Certainly  it  does  so  suffer  when  it  is  morally 

but  not  Legally  at  fault.  Its  men  work  for  it  with  less 
d.  It  finds  it  difficult  to  retain  their  services.  The 
quality  of  its  production  Buffers.  It  loses  ground  and 
is  outstripped  in  the  industrial  race.  Why  the  court  > 
should  refuse  to  take  cognizance  of  that  which  Lb  an 
ordinar v  matter  of  dailv  life  it  is  difficult    indeed   to  un- 

derstand.  Take,  for  example,  the  charge  of  man- 
slaughter.    Any  student  of  workmen's  compensation  cs  i  i 

will   not   doubt    that    in  a  choice   between   the  adoption  of 

a   completely    protective   system   and   the   possibility   of 

an  occasional  accident,  there  are  not   a   few  corporations 

anti-social  enough  to  select  the  latter  alternative.  Hu- 
man life,  they  will  argue,  is  cheap;  the  fencing,  let  us 
say.  of  machinery  is  dear.  But  admit  the  exist,  nee  of 
the  Corporate  mind   and   that   mind  can  be  a  guilty  mind. 

It  can  be  punished  bv  w;lv  ()t  fine:  and  if  it  be  mulcted 

with  sufficient   heaviness  we  may  be  certain  thai   it   will 

«»  Cyclists1  Touring  Ctah  v.  Hopkinsoo,  L  EL  [1M0]  l  Ch,  179. 


PERSONALITY    OF    ASSOCIATION-        157 

not  offend  again.  What  i>  tin-  alternatin  To  attack 
lome  miserable  agent  who  has  been  acting  in  the  interest 

of    I    mindless    principal,    an    ajjcnt,    as    Maitland    said,' 

who  i^  tin   "servant  of  an  unknowable  Somewhat.*1     But 

if    thai    SoiiKwh.it    be    mindless,    hou    can    i*    ha\.-    selected 

an  a^mt  ?  For  selection  implies  the  weighing  of  quali- 
ties, and  that  is  a  characteristic  of  mind. 

VII 

When,  therefore,  we  look  at  the  association  which  has 

chosen  to  incorporate  itself,  we  cannot  but  feel  that  1- 

than  the  admission  of  a  real  personality   results   in  illo^ie 

and  injustice.     It  is  purely  arbitrary  to  ur#<-  that   per 

sonalitj  must  be  so  finite  as  to  be  distinctive  only  of  the 
living,  single  man.71  Law,  of  a  certainty,  is  not  the 
i'  -ult    of    one    man'-    will,    but    of    a    complex    fusion    of 

wills.     It  distills  the  quintessence  of  an  infinite  number 

of  personalities.  It  displays  the  character  not  of  a 
Many,  but  of  a  One  —  it  becomes,  in  tact,  unified  and 
coherent.  Ultimately  pluralistic,  the  interactions  of  it  B 
diversities  make  it  essentially,  within  the  sphere  of  its 
operations,  a  single  thing.  Men  obey  its  command-.  It 
act-.  It  influences.  Surely  it  is  but  a  limitation  of 
outlook  not  to  extend  the  conception  of  personality  into 
this  incorporeal  sphere. 

It  is  urged  that  to  neglect  this  is  to  commit  injustice 
when-  the  corporation   is  concerned.     Even  les>  happy 

shall  u<    t\el  Vfhen  we  turn  to  the  association  that  is.  oddly 

enough,    termed    voluntary;    as    if    your    unincorporate 
70  Introduction    t.>    Gierke,    Political    Tk*ori§s    of    the    MiddU 

I    •      p.    to. 

:i  (  :    i  .if.  Bradley,  djpp*atomc€  wmd  Bfaltty,  p,  B88.    "For  me 

a  person  Ifl  Unite  or  \s  in>  mindless." 


L56       PERSONALITY    OF    associations 

body  were  any  less  tin-  result  of  ^  If  will  than  its  cor- 
DOrate  analogue.      We   shall   find    no   law   of   associations. 

What  ire  shall  find  Lb  rather  ■  leriet  of  referencet  to  the 

•    divisions,   contract,   tort,  and    the   like,  of   ordinary 

law.     For  here,  m  the  Legal  view,  ire  have  no  bodiliness, 

nothing  more  than  a  Dumber  of  nun  who  have  contracted 

together  to  do  certain  things,  who,  having  no  corporate 

life,    can    do    DO    more    than    those    thing!    for    which    the 

agreement   has  made  stipulation*     Legally  they  arc  no 

unit,  though  to  your  ordinary  man  it   is  a  strange  notion 

that  a  Roman  Church,  a  Society  of  JeSUS,  a  Standard 
Oil  Trust  the  most  fundamentally  unified  persons,  10 
he  would  say,  in  existence  —  should  be  thus  devoid  of 
group  will  because,  forsooth,  certain  mystic  words  have 
not  been  pronounced  over  them  by  the  state.  Laugh- 
ahh    to  most   of  US  this  may  indeed  be;  yet  none  the  1< 

t .  rtainly  is  it  good  law. 

We  take  the  voluntary  society  in  contract.  Its  acts 
are  ultra  viret  unless  they  were  clearly  implied  in  the 
original  agreement.  You  join  a  club.  An  unwise  drafts- 
man has  failed  through  inadvertence  to  make  binding  the 
right  to  change  the  rules.  When,  therefore,  the  club 
falls  on  evil  days  and  changes  its  subscription  you  may 
refuse  to  pay  on  the  ground  that  you  have  not  contracted 
to  do  so.7-  It  does  not  matter  that  the  subscription 
had  been  already  raised  several  times;  it  does  not  matter 
that  you  had  assented  to  the  previous  changes;  that 
there  sraa  practical  unanimity  among  the  members  as  to 
the  Deed  for  the  change;  that  without  it   the  whole  future 

of  tin  club  was  jeopardized.     Of  all  this  the  courts  made 

entire  absi  raction.      The  contract  is  a  fundamental  agree- 
ment   Which   cannot    admit    of   change.      A   society   clearly 
n  Harlngtoa  v.  Beads!],  L  it.  [1908]  i  n>.  921 


PERSONALITY    OF    ASSOCIATIONS        159 

living  a  life  of  its  own  will  b<  denied  the  benefits  of  tl 
Life  because  if  bas  failed  to  take  advantage  ol  ■  lection  in 
an  Act  <>f  Parliament. 

NOr  is  (lie  full  significance  of  this  judgment  clear  until 
one  places  it  side  by  side  irith  the  ease  of  TheUusson  \. 
Valentia™  The  Hurlingham  Club  from  it^  origin  in- 
dulged in  pigeon-shooting.     It  sras  decided  to  do  so  no 

longer,  and   the   plaintiff  BOUghi    to  obtain   an    injunction 

preventing  the  change  on  the  ground  that  he  had  con- 
tracted for  this  sport  on  joining  the  club.  Yet  it  vras 
held  that  the  change  came  under  the  clause  admitting 
the  alteration  of  the  rules  and  was  not  a  fundamental 
change.  It  surely  will  not  be  argued  that  a  change  in 
a  subscription  rate  is  any  more  fundamental  than  this. 
As  a  plain  matter  of  common  serine  it  is  surely  obvious 
that  if  a  society  can  do  the  one  thing  the  other  should 
be  permitted.  If  the  courts  will  not  protect  the  preju- 
dices of  members  whose  sporting  tastes  verge  on  tli< 
Antiquarian,    why    should    it    protect     those    who.se    social 

tastes  verge  on  the  sullen  disagreeableness  of  the  boor? 

Nor  are  matters  improved  when  the  trust  conceals  the 
reality  of  this  group  life.  The  trust,  says  Maitland. M 
"has  served  to  protect  the  unincorporated  Gfnossenschaft 
against   the   attacks    of    inadequate    and    individualistic 

theories.  We  should  all  agree  that  if  an  Anstult  or  a 
Gcnosscnsvhdft  is  to  live  and  thrive  it  must  be  efficiently 
protected    by    Law    against    external    enemies.*1      If    it     is 

to  live  and  thrive  —  let  us  repeat  the  words  in  the  wav 
in  which  we  would  wish  the  emphasis  to  lie.  The  asso- 
ciation i^  to  thrive.  It  is  not  to  have  its  life  cramped] 
its  development  impeded.     It  is  to  be  sheltered  against 

the    attacks    of    men    willing    to    take    advantage    <>f    its 
ti  L.  R.  [MOT]  2  Ch.  1.  M  B  OoU.  r>'p>r.i,  p.  857, 


160       PERSON  \i.rrv    OF    ASSOCIATIONS 

cm  jM.ralil  \  .  >,    at     ha>f     ODC    PFOUld     Hunk,     tin      trust 

.  i iii«   into  lirin^.     Ami  \<t  it  i>  in  precisely  the  opp<>>ite 
wa\    tli.it    tin    court*    have    interpreted    their    purpo 
M.  n\  mindi  maj  change.     Their  purposes  ma?  change, 

\<>t    so    tin'    purposed   OI  nun   hound   toother    in   an   . 

ition.  The  famoui  Free  Church  of  Scotland  i  needs 
no   retelling;  the  House  of   Lords  chose  to   regard   it> 

lift  m  fixed  for  it  bv  the  terms  of  a  trust  —  not  leeing 
that  the  fact  that  the  church  baa  a  life  must  IMC.  isarily 
connote  its    right    to  develop   the   terms  on    which    that 

life  i>  lived.  Certain  eloquent  words  of  Lord   Macna^h- 

ten,  ipoken  in  his  dissenting  judgment,  serve  to  make 

char   the  opportunity   the  highest   English   tribunal    elm 
In    Deglect.      "Was    the    Church,'"    he    asked,    "thu^    puri- 

fied       the    Free    Church  —  bo    bound    and    tied    bv    the 

tenets  of  the  Church  of  Scotland  prevailing  at  the  time 
of  the  Disruption,  that  departure  from  those  tenets  in 
any  matter  of  Bubstance  would  be  a  violation  of  that 
prof'  >>ion  or  testimony  which  may  be  called  the  unwritten 

charter   <>(   her    foundation,   and    so   n-  irily    involve   a 

breath    of    trust    in    the   administration   of    funds    contrib- 

ated  tor  no  other  purpose  but  the  Bupport  of  the  Free 
Church  —  the  Church  of  the  Disruption?     Was  the  Free 

Church   by   the  very  Condition   of  lit  r  existence    forced   to 

cling  to  her  Subordinate  Standards  with  bo  desperate  a 

grip  that   Bhe  has  lost  bold  and  touch  of  the  Supreme 

Standard    of    her    faith?       Was    Bhe    from    birth    incapable 

of  all  growth  and  development?     Waa  she  (in  a  word) 

a   dead    branch   and   not    a   living   Church'"  We   must, 

75  On  .-,11  this  Or.  J.  V  Plgglt,  Gkwrehet  in  //"•  Modern  State, 
k  of  very  high  value. 

W  Orr.  repoH  Of  PrOJ  Church  of  Scotland  ense,  p.  57:*.  S.  C  .  If. 
1083  (IMS). 


PERSONALITY    OF    ASSOCIATIONS       161 

rarely,  accept  the  point  of  view-  of  Lord  Haldane  ifhen 
In-  argued  that  "the  test  of  the  persona]  identity  of  thii 

Church    lies    not    in    doctrine    hut    in    Its    life."      To    insisl 

on  the  itrictesi  adherence  t<>  the  letter  of  a  trust  means 
that  the  dead  band  ihall  regulate  the  living  even  ifhen 
they  have  outgrown  that  band's  control,  sixtv  or  si\ 
hundred  yean  alter  its  decease.  Is  there  anjf  answer  to 
the  protest  of  Mill  when  he  urged  thai  no  person  ought 
thus  to  be  exercising  the  rights  of  property  lis  hundred 

in    after    bis    death?77       It     is    iiioiv    plausible    to    take 
one's   stand   on   the  spirit    of   the   trust.      It    would    not    in 

Bubstance  bave  been  far  removed  from  the  doctrine  of 
<•//  prit  for  the  Bouse  of  Lords  to  bave  granted  the 
right  of  self-development  to  the  beneficiaries  of  a  trust. 
It   is  clear,   for   instance,  thai    religious    interpretation 

has  vastly  changed  since  the  advent  of  Darwinism. 
Would  the  courts  have  deprived  a  church  which  had  so 
modernized  its  creed  as  to  take  account  of  the  new 
knowledge  from  enjoying  gifts  left  to  it  in  a  pre-I)ar- 
winian  age?      It  is  not,  at  any  rate,  insignificant  that  the 

justice  of  the  courts  had  speedily  to  be  remedied  1>\  Act 

of  Pa i-l i anient. 

It  is  no  light  stumbling-block  that  this  cover  of  trustee- 
ship has  proved.     It  may  be  that   the  trustees  of  a  club 

will  incur  liabilities  on  that  club's  behalf,  though  the 
rules  bave  failed  to  provide  for  their  indemnity.      In  that 

event  the  members  will  be  able  to  avoid  payment  on  the 

ground  that  tiny  have  contracted  for  no  more  than  their 
subscriptions,    even    though    the    club    (and    they    as    its 

members)    enjoy    the   benefit    of   the   trustees9   action* 

Yet    it   would  appear  to  the  man  in  the  street    more  ctjui- 

77  i  EKfMTtafioM  0nd  Diicuttions,  p. 

7«   WiSC  v.  Perpetuul  Trust. ■«•  Oo.    [1008],   A.  C.    139. 


109       PERSON  \UTY    OF    ASSOC1  ITION9 

tabic  to  make  1 1  *  *  -  dub  pay  for  thai  of  irhich  it  enjoys  the 
benefit.     It,   foi   example,   the   committee  of  a   football 

club   employs   an    incompetent    person    to    repair   a    stand 

which  eollap         mitv  would  appear  to  require  thai  jusl 
the  club  would  have  enjoyed  the  profit-.         on  the 

llapse     of     the     stand,     it      is      righl      thai      it     should 

Buffer  the  penalties.  5Te1  the  courts,  taking  their  stand 
nil  tin  principles  of  the  lai  of  contract,  held  thai  the 
members  of  the  committee  were  responsible  and  musl  paj 
as  individual!  This  is  surely  the  violation  of  the  ordi- 
nary  principle  of  English  law  thai  he  who  holds  property 
must  bear  its  burdens  do  less  than  enjoy  its  advantages; 
nor  should  an  agency  or  trusteeship  obscure   the   real 

itlation.      A    case    can    be    conceiyed,    can    easily    ari 
where,  without  any  knowledge  on  the  part  of  the  trustees, 

and  by  sheer  misadventure  on  the  part  of  one  of  their 

st  r\  ants,  they   Income  Liable  for  damages   and   the  inem- 

ben  <m)  scot  free.  This  is  surely  the  reductio  a<l  ab- 
siinlum  of  legal  formalism.  Had  the  Privy  Council  in 
Wue  y.  Perpetual  Trustee  Co.  applied  the  perfectly 
straightforward   doctrine   of   Hardoon   v.   BelUiot*     no 

injustice   would   have   thus  occurred. 

And   the  contractual   theory  of  voluntary  associations 
Can    result     in    fictions    compared    to    which    the    supposed 

fiction  of  corporate  personality  has  less  than  the  inge- 
nuity of  childish  invention.     If  you  buy  a  liqueur  in  a 

cluh  that  does  not,  in  the  eyes  of  the  law,  constitute  a 
Ball  .  What  was  before  a  joint  interest  of  all  the  mem- 
bers lias  been  majricallv  released  to  you  jusl  at  the 
moment    when   yon   expressed   your   desire   to   the   club 

■'>   Brown  r.  Lewis,   U  T.  L  K.  455  (lSi)li). 
»o   [1901]   A.  (  .   118. 


PKHSONALITY    OF    ASSOCIATIONS        1( 

waiter,  Wltll  the  result    that   you  fan  drink   in   >afefy.il      Is 

it    worth  irhilc   thus   to  strain   reality   foi   the  ssJcc  of 
inadequate  t  beorj? 

Certain  property  rights  serve  to  bring  out  the  failure 
of  the  contractual  attitude  irith  striking  clearnea  The 
lucklesa  fate  of  Serjeants'  Inn,  of  Clements1  Inn,  ami 
Barnard's  Inn  shows  hoi  disastrous  can  !><•  tin-  attempt 
to  conceal  corporateness  to  the  public  interest,  No 
one  believes  that  the  distribution  of  their  property  among 
the  lurviving  members  fulfilled  the  pious  purpose  of  their 
founders.  The  property  of  the  unincorporate  associa- 
tion can  now  be  taxed  (and  for  income  tax  at  that); 
but  the  courts  did  not  tell  us  whether  this  was  a  new 
method  of  double  taxation  or  an  attempt  to  recognize 
the  fact  of  corporateness.  The  fact  that  the  fishermen 
of  the  Wye  had  for  a  period  certainly  not  less  than  three 
centuries  had  a  perfectly  unquestioned  user,  had  therein 
acted  exactly  as,  in  like  circumstances,  a  prescriptive 
corporation  would  have  acted,84  did  not  persuade  the 
Lords  to  regard  them  as  having  rights  against  the  tech- 
nical owners  of  the  land.81  It  were  surely  an  easier  as 
treU  as  a  wiser  thing  to  give  to  this  obvious  unit  the  title 
of  unity. 

Yet  another  curiosity  deserves  some  notice.  The 
courts  do  not  regard  a  volunteer  corps  as  a  legal  entit\, 
SO  that  it  cannot  be  bound  by  contract.      It  can  become 

■r 

bound  only  by  particular  members  pledging  their  liability 

si  C.ruff  r.  Evans,  8  Q.  B.  D.  373  (1882). 

82  See  a  deeply  interesting  letter  in  the   Times  for  April  10,  1902. 
as  18  &  49  Vict.,  c.  51,  and  Curtis  r.  Old  Monkland  Conservative 
Ass'n   I  1  !><><;]   A.  ('.  86. 

««  In  r,    Free  Fishermen  of  Fnversham,  L  R,  H  Ch.  D.  US  MssT). 
Harris  v.  (  hest.rtield   [19/11],   A.  C.  623.     Lord  Loreburn   r, 

a  valuable  di  tenting  judgment. 


164       PERSONALITY    OF    associations 

OB  itl  behalf,  no!  for  it  as  agents  hut  for  themselves  as 
principals.      So  ■  commanding  officer  of  a  volunteer  corps 

prill    In    luld    responsible   f»>r   uniforms   supplied   to   the 

corps;        though,   anomaloui    M    it    umx    beein,    lie    is    not 

responsible  to  tin-  bankers  of  the  battalion  for  its  over- 
draft. It    'i  COrpa  cannot   ha\e  a   liability   for  Uniforms, 

\sh\  can  a  liability  for  its  overdraft  exist?  And,  fur- 
th<  i,  it*  "it'"  is  no  legal  entity  at  all,  why  do  we  use  col- 
lective nouns  with  possessive  pronouns  and  singular  verbs? 

Now  in  all  conscience  these  are  absurdities  enough;  yet 
note  what  has  followed  from  the  denial  of  a  right  to 
sue  and  be  sued.  It  was  the  mere  accident  of  his  mem- 
bership of  the  Middle  Temple  which  made  Lord  Eldon 
grant  to  a  body  of  Free  Masons  the  right  to  a  represen- 
tative action.  It  might  have  been,  as  he  said,88  "singular 
that  this  court  should  sit  upon  the  concerns  of  an  asso- 
ciation, which  in  law  has  HO  existence,"  but  it  was  just 
because  it  had  an  existence  in  life  that  the  law  had  to 
take  some  account  of  it.  "The  society  must,"  as  Eldon 
saw,  "some  way  or  other  be  permitted  to  sue."  Why? 
Because  without  that  permission  the  gravest  injustice 
would  occur  and  to  refuse  it  is  to  negative  the  whole  pur- 
pose for  which  the  courts  exist.      It  was,  again,  a  great 

advance  when  a  private  Act  of  Parliament  enabled  a 

\oluntary  society  to  sue  in  the  name  of  its  chairman.89 
Bui  it  docs  not  go  far  enough.  The  entities  the  law 
must  recognize  are  those  which  act  as  such,  for  to  act 
in  unified  fashion  is  —  formality  apart  —  to  act  as  a  cor- 
poration.      When    the   Scottish    courts    upheld    a    verdict 

s«  s.miurl  Brothers,  Ltd  v.  Whether!?,  L.  R.  [1906]  l  K.  B.  184. 

87    National   Hank   of  Scotland  P.  Shaw    [1918],  S.  C.   13.*. 

ss  Li,,yd  p.  Louring,  a  Ws.  77.J,  778  (1808). 

8»  Williams   D,    llrauinunt,   10   Mag.  980    (1H.J3). 


PERSONALITY    OF    ASSOCIATIONS        165 

ftgminsi  the  LibeUen  of  "thf  Roman  Catholic  authorities 
of  Queenstown,*1  they  knew  thai  no  corporation  had  been 
libelled)  but  ■  body  of  men  to  b<  regarded  as  a  unit 
for  practical  purpose*,  That  body  had  suffered  in  repu 
tation  from  tin-  libel;  it  was  right  and  fitting  that  it 
should  receive  compensation*1  And  when  a  voluntary 
.society  in  the  pursuii  <>f  its  functions  libels  a  company 

without  justice,  it  seems  rational,  even  if  it  i>  legally 
an  innovation,  to   make   the  society   J>av.'J1 

Nothing    has    brought    into    more    striking    prominence 

the  significance   for   practical   life   of   this   controversy 

than  the  questions  raised  in  the  last  decade  and  a  half 
by  trade-union  activity.  Of  the  rights  and  wrongs  of 
their  policy  ^reat  authorities  have  written;02  and  it  is 
not  now  needful  to  discuss  at  length  the  decisions  of  the 
courts.  But  this  much  may  at  least  he  said:  that  just 
as  surely  as  the  decision  of  the  House  of  Lords  marked, 
in  the  great  TafT  Vale  case,03  a  vital  advance,  so,  no  I<  is 
surely,  did  its  decision  in  the  Osborne  case  "  mark  a 
reactionary  step.  The  TafT  Vale  case  decided,  as  it  ap- 
pears to  us,  quite  simply  and  reasonably,  that  a  trad. 
union  must  be  responsible  for  the  wrongs  it  commits  —  a 
point  of  view  which  BO  impressed  the  Royal  Commission 
that  they  did  not  recommend  the  reversal  of  the  judg- 
ment.01 The  Osborne  case  decided  that  a  method  of  action 
oo   Brown  7-.  Thomson  &  Co.   [1912]   8.  ('.  850. 

ei  Greenland*,  Ltd  v.  WUmshurst,  L.  EL  [1918]  &  K.  B,  "."7. 
92  See  particularly  the  Report  of  tin-  Royal  Commission  on  Trade 

Disputl  .  1906 J  the  preface  t.»  the  191]  edition  of  Wet.!.,  UUtory  of 
Trn<l>  UtdowUm;  and  above  »dl,  the  brilliant  articles  of  Professor 
Geldarl    in   38   ffOFV.   L.   B«V.  579  and   Pol   Quart,  for   May,    1914, 

M  [1901]  A.  C.  \2C>. 

»«   [1910]  A.  C.  87. 

es   Report,  p.  8. 


IM       PERSONALITY    OF    ASSOCIATIONS 

which  a  trade  union  thinks  Decessar?  for  ita  welfare  and 
protection   may    be   illegal   because   it    is   political   and    not 

industrial  in  its  scope  political  objects  being  so  hommm 
beyond  the   province  of  ■   trade  society.     Hut    that    is 

*  i 

surety  ■  *«»<»  narrow  interpretation  of  the  facts.  When 
dm  i  a  political  object  end  and  an  industrial  object  begin? 

It   is  obvious  to  anyone  who  has  ejCS  to  iee  that  at   every 

point     modern    politics    is    concerned    with     the    facts    of 

everyday    Life    in    its    industrial    aspect.     Therein    they 

charlv  touch  the  worker,  and  the  trade  union  is  an  asso- 
ciation formed  for  his  protection*  On  this  view  Un- 
political activity  of  trade  unions  means  no  more  than 
#i\in^  emphasis  to  one  particular  branch  of  their  indus- 
trial   policy.      It   is,   then,   one   would    urge,   open   to   the 

courts  to  declare  the  transaction  void  on  grounds  of 

public  policy;'  but  it  is  probable  that  they  would  pay 
dearly    for   BO   doing   in   the   loss   of   the   respect    in    which 

they  are  held.  It  is  wiser  when  dealing  with  the  group 
person  not  to  interfere  with  its  individual  life.  The 
experience    of    the    Privy    Council    as    an    ecclesiastical 

tribunal  mi^ht  herein  have  given  a  lesson  to  the  House 
of  Lords.  There  was  it  sternly  demonstrated  that  the 
corporation  of  the  English  Church  —  a  corporation  in 
fact  if  not  in  law  —  will  not  tolerate  the  definition  of 
its    doctrine    by    an    alien    body.1"      The    sovereignty    of 

theory  ia  reduced  by  the  event  to  an  abstraction  that  is 

simply  ludicrous.     It  may  well  be  urged  that  any  similar 

interference  with  the  life  of  trade  unions  will  result  in 
a   not   dissimilar  history. 

9«   A.  Lord  Shaw  did  in  the  House  of  I,nrd>,  and,  in  part,  Fnrwell 
and  Pletchef  Moulton,  L.  J.  .1.,  in  the  Court  of  Appeal  below. 

'•'  Bee  on  this  the  Report  of  the  Royal  Conmlsskm  on  Ecclesias- 
tical Discipline  of  |90S  /"ly.-dm. 


PERSONALITY    OF    ASSOCIATION-         Iff! 


vm 
We  have  I  raveled  far,  hut  at   least  there  has  been  din c- 

iiou  in  our  traveling.  We  have  asked  a  question:  i^ 
corporate  personality  a  real  thing?  Ei  the  collective  will 
that  is  the  inevitable  accompaniment  of  that  personality 
hut  a  figment  of  the  imagination?  The  thesis  that  has 
been  here  maintained  is  a  simple  one.     It  is  that,  when 

tin-  man  in  the  street  calls  (let  us  say)  Lloyds  and  the 
Stock  Exchange  corporations  he  is  profoundly  right  in 
his  perception*  He  has  brushed  aside  the  technicalities 
of  form  and  penetrated  to  the  reality,  which  is  but  a 
cloud  serving  not  to  reveal  but  to  obscure.  This,  it 
may  be  pointed  out.  Brie,  J.,  perceived  nearly  sixty 
years  ago.98  ''According  to  the  plaintiff,"  he  said,  "it 
i^  supposed  to  be  a  corporation  created  for  the  purpose 
of  the  navigation,  and  having  the  legal  incidents  of  its 
existence  limited  for  that  purpose.  But  it  appears  to 
me  that,  by  common  law,  the  creation  of  a  corporation 
conferred  on  it  all  the  rights  and  liabilities  in  respect 
of  property,  contracts  and  litigation  which  existence 
confers  upon  a  natural  subject,  modified  only  by  the 
formalities  required  for  expressing  the  will  of  a  numer- 
ous body."  Here,  at  any  rate,  is  the  basis  of  much- 
needed  innovation.  A  corporation  is  simply  an  organ- 
ized hodv  of  men  acting  as  a  unit,  and  with  a  will  that 
has  become  unified  through  the  singleness  of  their  pur- 
pose. We  assume  its  reality.  We  act  upon  that  as- 
sumption.     Are  we  not  justified  in  the  event? 

After   all,  our  legal   theories   will    and   must    be  judged 

»8  I'.ostock  v.  North  Stafford ihlic  Railway  ('<>..   i   1:    ft   \>, 
biy  (1S55). 


168        PERSONALITY    OF    ASSOCIATIONS 

liv  their  applicability  to  the  facts  thev  endeavor  to  re- 
sume.  It  is  clear  enough  thai  iinleti  ire  treal  the  per- 
lonalitv  <>t  our  group  peraom  ai  real  and  apply  the 
I'.ict  of  that  reality  throughout  the  irhole  realm  of  law, 

what    ire    call    justice    will,    in    truth,    be    DO    BON    than    a 

chaotic  hiuI  illogical  muddle. 

English   law  vers,   it    is   -aid,  have  a  dislike  of  abstrac- 
tions.    Such  excursions  m  thii  into  the  irorld  of  legal 
metaphysics  bave  for  them  the  suspect  air  of  dangerooi 
adventure.     Bui  life,  alter  all,  is  a  series  of  precipic 
and   we   have   to   act    upon   the  assumptions   we   make 

Here  ire  urge  B  radical  thesis;  we  say  that  the  distinc- 
tion between  incorporate  and  voluntary  association  musl 

be  abolished.  We  say  that  the  trust  must  be  made  to 
reveal  the  life  that  glows  beneath,  thai  we  must  have  the 
means  of  penetrating  beyond  Its  fictitious  protectiveness. 

No  one  doubts  that  the  change  will  be  vast.  No  one 
doubts  that  the  application  will  need  courage  and  high 
resolve.  But  it  is  in  its  very  difficulty  that  we  shall 
find  its  supreme  worth. 

IX 

A  last  word  remains  to  be  said.     If  what  we  have  here 
been    urging   is    true,    it    reacts    most    forcibly    upon    OUT 

theory  of  the  state.     Thus  far,  for  the  most  part,  we 

have  sought   its  unification.     We  have  made  it  intolerant 

of  associations  within  itsrlf  —  associations  that  to  Hobl 

will  appear  comparable  only  to  "worms  within  the  en- 
trails   of    a    natural    man.'"       As    a    result    we    have    made 

our  state  absorptive  in  a  mystic,  Hegelian  fashion.  It 
is  all-sovereign  and  unchallengeable.  It  has,  if  it  be  the 
papa]  state,   t r i<  1  the  Pope  its  personification,  the  pl#ns 

tiidc  puttstdtis;  be  it    imperial,  its  emperor  is  legSbui 


PERSONALITY    OF    ASSOCIATIONS       189 

.sohitns;  be  it  Britannic  its  parliament  hi-.  a>  I).  Lolme 
somewhat  whimsically  pointed  Out,  DO  limit  in  power 
MM     the    laws   of    nature.      We   seem,    when    \\  •     front    the 

.state,  to  cry  with   Dante  thai    the  maximc  unum  must 

DC    the    niii.riirif    bofWI  and     with     Boniface    VIII     that 

there  is  heresy  in  political  dualism.1*      Admirable  enough 

this  may   he   in   theory;  of  a   certainty   it   does   not    tit    the 

facts.     We  do  not  proceed  from  the  state  to  the  parts 

of  the  state,  from  the  One  to  the  Many,  on  the  ground 
t lint  the  state  is  more  unified  than  its  parts.  On  the 
contrary,  PTC  are  forced  to  the  ftdnussioil  that  the  parts 
are  as  real,  as  primary,  and  as  self-Sufficing  as  the  whole. 
"The  pluralistic  world,"  said  James,1"1  "is  .  .  .  more 
like  a  federal  republic  than  an  empire  or  a  kingdom. 
However  much  may  be  collected,  however  much  may  re- 
port itself  as  present  at  any  effective  center  of  conscious- 
ness or  action,  something  else  is  self-governed  and  absent 
and  unreduced  to  unity."  But  sovereign  your  state  no 
longer  is  if  the  groups  within  itself  are  thus  self-govern- 
ing. Nor  can  we  doubt  this  polyarchism.  Everywhere 
W  e  find  groups  within  the  state  which  challenge  its 
supremacy.  They  are,  it  may  be,  in  relations  with  the 
state,  a  part  of  it;  but  one  with  it  they  are  not.  They 
r<  fuse    the    reduction    to    unity.      We    find    the    state,    in 

James9  phrase,  to  be  distributive  and  not  collective.    Men 

belong  to  it;  but,  also,  they  belong  to  other  groups,  and 
a  competition  for  allegiance  is  continuously  possible. 
Here,  BS  a  matter  of  history,  we  find  the  root  of  Mr. 
Gladstone's  attack  on  the  Vatican  decrees  <>f  1870,      An 

oo  Dc  Mon.,  Ch.  15. 

See  the  Hull   Unam  Sanctam,  Ch.  1,  Ex.  Com.  1,  8. 
A     Pltirnlistic    I'nir*  T$i  ,    p,    821.     The    whole    hook    li  is    vital 
significance  for  political  theory;  MC  especially   t lie  fifth  lecture. 


no       PERSONALITY    OF    associations 

allegiance  that  is  unreduced  to  unity  appeared  to  him 
without  meaning.  Yet  it  h  obvious  that  every  great 
crisis  must  show  iU  ciicntisl  plurality.     Whether  ire  will 

or  no,  we  are  bundles  of  hyphens.      Winn  the  cental  of 

linkage  conflict  a  choice  nm-t  be  made. 

Such,  it  is  sul)initted,  is  the  natural  consequence  ol  an 

admission    that     the    personality    <»f    associations    is    real 

and  not  conceded  thereto  by  the  state.  We  then  give 
to  tins  latter  group  no  peculiar  merit.  We  refuse  it 
the  title  of  creator  <>f  all  else.  We  make  it  justify  itself 
by  its  consequences.  We  stimulate  its  activities  by  mak- 
ing it  compete  with  the  work  of  other  groups  coextensive 
with  or  complementary  to  itself.  As  it  may  not  ex- 
tinguish] so  it  may  not  claim  preeminence.  Like  any 
other  group,  what  it  is  and  what  it  will  be,  it  can  be 
only  by  virtue  of  its  achievement.  So  only  can  it  hope 
to  hand  down  undimmed  the  torch  of  its  conscious  life. 


THE    EARLY    HISTORY    OF    THE 
CORPORATION    IN    ENGLAND4 


Ours  is  a  t  i m« •  of  deep  question  aboul  the  itate.1 
Theories  of  corporate  personality  have  challenged  in 
decisive  fashion  its  proud  claim  to  preeminent  Its 

character  of  uniqueness  seems  hardly  to  have  survived 
the  acid  test  of  skeptical  inquiry.  The  groups  it  has 
claimed  to  control  Beem,  often  enough,  to  lead  a  life 
no  less  full  and  splendid  than  its  own.  The  loyalty  they 
can  command,  the  fear  they  may  inspire,  are  near  enough 
to  its  own  to  seek  comparison  with  it.  Yet  dogmas  that 
are  none  the  less  fundamental  because  they  are  hardly 
old  still  haunt  our  Speculations.  It  is  barely  a  century 
and  a  half  since  Blackstone  asserted  in  bis  emphatic 
fashion  the  right  of  the  state  to  condition  and  control 
all  corporate  existence.3  Less  than  three  centuries  have 
elapsed  since  a  civil  war  shocked  the  timid  Elobbes  into 
a  repetition  of  Richard  of  Devizes*  anger  at   the  danger 

*  Reprinted  from  the  Harvard  /.'/:.■  Roviow,  Vol  \\\.  Nd  a 

i    Cf.    Marker,    EugUik    Political    Tk&mffhi    from    Ihrlurt    S/>>nr>r 

tn  To-day,  175  ff.,  and  Burns,  1  In   Morality  of  Nations,  patriot. 

2  Cf.    B.    Barker    in    the    PoUttoal    QwaHoHf    f«»r    I'Yhruarv,    1915] 

Plggie,  Okmwokoi  in  th>   Modon  Sfnfr,  and  SaleUles,  /><   /•'  Portomr 

unlit/  Juridvfur,  11,  35(1,  301,  4G3-G1,  5.33,  619. 

3  1    Cnmm.  172. 

^  Loviotham,  Bk  IT,  Ch.  20.  For  Ml  timidity,  cf.  Croom  Robert- 
son's Life,  52. 

171 


17_'       EDSTORY    DP    THE    CORPORATION 

of  group-persons.1  Wt  perhaps  too  little  realise  that 
a  long  history  lies  behind  Blackstone's  incisive  sentences; 
nor  is  the  contemptuous  phrasing  <>f  Hobbes  en  accurate 

indr\     to     the     English    attitude.       For,    M     .Maitland     lia> 

pointed  out,'  few  eonntriee  have  enjoyed  a  richer  variety 
of  group-life.  Y»  t  wt  have  hardly  come  to  a>k  the 
fundamental  questions  that  richness  suggests.     A  history 

of  English  state  theory  has  still  to  be  written.7  We  have 
still  to  work  out  in  detail  the  lines  of  their  thought  as  to 
its   juridical    nature   and   of   its    relation    to   those   <r»"(>nps 

of  which  they  were  so  dramatically  prodigal.  English- 
men are  a  practical  race,  and  they  had  discovered  the 

benefits  of  fellowship  long  before  they  speculated  upon 
their  nature.  Orcy  of  Dorsetshire  had  built  for  his 
brethren  a  gild-house  long  before  the  stern  hand  of  the 
Norman  conquerer  bad  begun  to  effect  the  centralization 
of  law;1  and  the  benefits  of  meat  and  drink  in  goodlv 
fellowship  were  not  unknown  in  Anglo-Saxon  Cambridge.8 
But  where  men  meet  to  eat  and  drink  and,  mayhap, 
to  pray,  the  subtleties  involved  in  corporate  exist  (rice 
hardly  seem  to  emerge.  Comma  nit  us,  it  is  true  enough, 
i-  the  key  to  early  English  history;  but  it  is  a  dangerous 
and   ambiguous  word.     "It  swallows  up,"  as    Maitland 

has   happily    remarked/6  "both    the  corporation   and    the 

6  Richard  of  pivi.'x'  ( 'linniirh,  llli.  ("f.  1  Stuhhs,  CoUttU.  Hist., 
f>  ed.,   1*0. 

«  Cf.   Mait land's    Introduction  to  Gierke,  PoHticaX    TkoOfioS  of  'I" 

Mi, I, II,     ./;/,,     XXXVI. 

7  Thoiifrh  Maitland  lias  indicated  the  lines  on  which  such  a  his- 
tory should  he  written.     3  Coll.  PajHr.*,  210-70, 

s  Cod**  l>i/>.  (ed.  Kemble),  No.  IM& 

o  l  Kemble,  Bamom*  in  Bug.,  51.3.  On  the  Anglo-Saxon  puis  gen- 
erally, !  GfOfS,  QQd  M<rrh<n\t.  174-91.  Cneist  has  warned  us 
■gainst   Overestimating   their   importance.     1    Verwalt.    139. 

io  Towntliip  sad  Bvrowjh,   12. 


HISTORY    OF    THE    CORPORATION       178 

group  of  oodwners.w  That,  indeed,  ii  intelligible  enough; 
for  in  the  nineteenth  centurv  ■  great  Lord  Chancellor 
could  itfll  be  pnuled  about  the  nature  of  corporate 
ownership.11  The  abstractions  of  early  jurisprudence 
aiv  posi  conquestual  in  origin;  and  ire  mav  even  doubt 
whether  the  early  conununalism  irhicfa  bai  so  much  affected 
the  economic  speculation  of  our  time  ii  not  in  lac*  more 

truly    individualist     than    ire    care    to    admit.1"       We    dan- 

not  base  our  speculations  upon  the  evidence  anterior  to 

the  time  when  the  iron  hand  of  Norman  William  fashioned 

a  conquered  kingdom  to  his  own  desire.  Of  corporate- 
oess  ire  shall  speak  with  some  skepticism,  though  we  shall 

Ognize  that  itfl  roots  are  there.  For  the  court  rolls 
from  which  our  main  knowledge  of  internal  organization 
is  drawn  date  only  from  the  end  of  the  thirteenth  cen- 
tury; the  records  of  the  King's  Court  are  continuous 
only  after  the  twelfth.  Our  earlier  knowledge  is  rather 
of  fields  and  farming  methods,  of  taxation  and  military 
service,  than  of  judicial  or  political  unification.  And 
where  there  is  so  dangerous  an  economy  of  words,  our 
footsteps  must  needs  go  slowly. 


u 

Vet  some  sort  of  guesswork  we  may  adventure.  If 
corporatenesfl  be  held  in  the  balance  the  basis  of  it  mav 
at  any  rate  he  discovered.  The  theory  of  possession  — 
the  later  turning  point  in  corporate  history  — -  here  helps 

OS  hut    little.      It    is  to  men   that  the  land  belongs.      Our 
11   Cf.  BldOD,  L  C,  in  Lloyd  v.  I.narinir,  <i  Vrs.  77:?,  TW  77   (  1808). 

(  i     Maitinul,  DowMdbjj   Book  and   Bojfomd,  MA  ff.    On  the 

Other   li  hkI    Professor   YinoLrradoff  .stands    I »y    tin-   older   conception. 
QrOWtk   "f  th,    Manor,   18   ff.,   150. 


174       HISTORY    OF    THE    CORPORATION 

Anglo-Saxon  village  is  full  of  freeholders* w  The  men 
who    (lieu     up    Domesday    Hook    wen     not     very    certain 

irhether  St.   Peter  owns  his  church,  or  the  priest   who 

Caret    tor    it.14      The    church    will    indeed    hold    land;    and 

ire  ma v    perhaps  see   therein  a  significant    effort   after 

a  natural  personification.  Yet  we  shall  put  our  trust 
in   the  mysticism  of  a  superstitious   time   rather   than   the 

advanced  ideas  of  an  inquiring  jurisprudence.15  The 
land  of  Bnglandj  of  a  certainty,  is  the  king's,  for  Wil- 
liam knew  too  well  the  dangers  of  continental  feudalism 
to  submit  himself  to  its  conflicts  of  allegiance.16  It  is 
evidence  enough  that  a  corporate  kingdom  is  not  yet 
attained,  for  William  at  least  is  stout  flesh  and  blood, 
and  what    he  calls  his  own  he  uses   for  his  purposes.1. 

Vet  a  certain  attempt  at  noteworthy  unification  we 
deem  not  wanting.  England  is  divided  into  township-  ; 
and  we  shall  exaggerate  the  automatism  of  medieval  life 
if  we  believe  that  its  affairs  went  of  themselves.  A  town- 
ship court  it  seems  clear  that  we  must  have.18  That 
court  will  pass  by-laws,19  and,  if  need  be,  enforce  them.20 

13  This  is  of  course  the  whole  point  of  the  second  essay  in 
Maitland,  Domtldog  Hook  and  lUi/und.  Cf.  especially  pp.  318  flF. 
It  [fl  Interesting  to  note  the  kindred  ideas  of  continental  historians. 
Cf.   especially  2   Flach,  Les   Oripines  (h    /'.  /  nci<  nm    Prone*,    t">,   and 

Dargun,  Urxprumj  <ii*  Eigtnthnmu  5  ZtUtchrifi  far  VtrgU  ich*  md$ 

/,'.  ehtiwiiti  nschaft,   55. 

n   1   Pollock  &  M  ait  land,  2  ed.,  408-500. 

is  Cf.  B  Gierke,  Deniee&f  Oenoteenteso/lereenf,  195. 

io  l  Stnbbt,  Conittt.  //;.</..  <;  ed,  290. 

17  Cf.  :*  .Maitland,  ('nil.  Paper*,  246.  "All  lands  were  his  lands, 
and  ire  must  he  eareful  not  to  read  a  trusteeship  for  the  nation  into 
our   medieval   doCOmentS>M 

is  Cf.  Vinogradoff,  Growth  of  the  Manor.  i<u. 

i»  Cf.  Norihmmb$rkmd  dttkt  BeU  (Snrteei  So&,  roL  B8),  iff. 

=o  Cf.   Massin^rherd,   Court    Rolls   of   Imjohlmrlh,  44;    1    P.   ft    M  . 

a .  d.,  sia 


HISTORY    OF    THE    CORPORATION       175 

There  was  joint  Liability  in  taxation/1  for  the  icparate 
collection  of  geld  from  each  individual  was  a  ta^k  no 
administration  could  then  have  undertaken.  The  vil- 
lage will  grow  and  divide  into  parts;-'    siirclv   the  fact   of 

division  connotes  the  recognition  of  significant  difference. 
The  village  is  a  police  unit,  and  it  will  sometimes  struggle 
against  a  forcible  extinction.-'  It  i->  of  real  importance 
that  our  great  geld-book  should  write  of  local  duties  and 

local  privileges  in  township  term-.  The  vill  that  farm- 
its  own  dues  has  a  healthy  sense  of  its  own  individ- 
uality;2" and  the  men  who  could  hold  and  sell  their  land 
"communitcr"  we  may  not  easily  pass  by.*1  Nor  dare 
we  minimize  a  waste  land  which,  however  vaguely,  is  yet 
the  possession  of  the  community.28 

Admittedly  this  is  no  proof  of  formal  corporateness ; 
it  is  doubtful  if  your  Anglo-Saxon  peasant,  even  if  he  be 
lettered  monk,  would  have  grasped  the  transition  from 
communa  to  wnkoer$%tat.     Hut  no  one  who  looks  at  this 

evidence  of  an  action  which,  whatever  it  is,  is  yet  not 
individual,  can  fail  to  discern  a  soil  which  -< •<  ids  to 
promise  fairly  for  the  growth  of  abstract    ideas.      Land 

21  Cf.  Rot.  Iluml.,  I,  6;  II,  8,  etc. 

m  Hence  Maitland'*  brilliant  but  untenable  theory  «>f  the  manor. 

Domrsihii/   Hook  (mil   Beyond,   107-2K. 

•i  Domi^imi  Hook  and  Beyond,  il  ft.  F<»r  ■  differenl  view,  cf. 
2  Maitland,  CoU.  Papers,  84  86. 

-*    Maitland.    Pleas    of   OlouCCSti r,    PL    br)7.      YinopradotT,    l.nolish 

Society  in  the  Eleventh  Century,  216. 

Cf.  l  Domesday  Hook  181  d  (Frame),  275  b  (Wyaston). 
n  Cf.    i    Select    Pleas    in    Memorial   Courts    (Seidell    Sot),    178 

(  R  rip-lit  wait  ham). 

ti  I  Domesday  Hook  218  <1  (Gddington).    On  the  Belf-gorerning 
character  of  the  medieval  township  the  tenth  appendii  of  Professor 
VlnogradolTfl  English  Society  In  tht  Eleventh  Century  Is  an  interest- 
ing balance  to   Maitland's  skepticism. 
2  Cross,  op.  rit.,  132, 


176       HISTORY    OF    THE    CORPORATION 

that   is  somebody's  land  may  soon,  and  easily,  become 

the  land  of  BOme  body.  Men  irho  act  in  union  will  conic 
impiffly  to  regard  themselves  M  an  unit.  Local  de- 
limitation  will    make   for   the  growth   <>f  K  pfl  rat  L8HL      The 

men  of  Trumpiogton  trill  somehow  partake  of  ita  char- 
acter.     What    that    character    is    they    may    not    as    v<  t 

speculate;  but  the  basis  <>f  speculation  lies  ready  to  their 

hand. 

Whatever  .skepticism  we  may  cherish  as  to   townships, 
some  vague  sort  of  corporate  character  we  may  not  take 

from  hundreds  and  from  counties.  "The  'county,' " 
wrote  Maitland/'  "is  not  a  mere  stretch  of  land  .  .  . 
it  is  an  organized  body  of  men;  it  is  a  COmmunitM."     In 

truth  that  organized  character  is  little  short  of  an  amaz- 
ing thin^.  Devonshire  boasted  a  common  seal  at  the 
time  of  the  first  Edward;1  and  comital  grants  seem  to 
fall  no  less  trippingly  from  the  pen  of  needy  .John  Lack- 
land than  when  boroughs  were  the  subject  of  his  corrupt 
donations."1  The  county  can  be  fined;  and  it  seems  like 
enough  that  it  kept  a  common  purse  against  such  mis- 
fortune.12 It  will  defend  itself  and  hire  a  champion  to 
the  purpose.*  It  has  a  court  which  is  thoroughly  repre- 
sentative in  character.  It  seems  to  make  by-laws;34  and 
it  is  a  natural  unit  of  parliamentary  representation. 
And  if  the  hundred  has  failed  to  advance  so  far,  the  fine 
for  murdrum  denotes  an  early  unification;  and  a  clause 
in  the  Statute  of  Winchester  shows  us  that,  the  reeogni- 

20  1   P.  &  M.,  2  ed.,  531. 
so  Ibid.,  588. 

H    lint.   Chart.    122,    132.     Maitland   has  noted   that   as   late   as    17 
Bdw.  II  an  attempt  was  made  to  indiet  the  eminty.     1  Inc.  cit.,  535. 
M  idox,  fffef.  nf  Exchequer  (cd.  of  1711),  386. 
83   i   \\  ft   M.,  2  ed.,  537. 
»«  Ibid.,  555,  n.  2. 


HISTORY    OF    THE    CORPORATION       177 

(ion  of  ita  value  remain*  al  leasl  to  the  dote  of  the 
enrlv   middle  agi  The  hundred   has   Its  court;   nor 

<io( »   it    evade   the   financial   censure  to   beloved   <>f   the 
Angevin   kings.*     There  is  even  tome  proepeci    thai 
propertv  in  land  may  n<>t  haw  been  lacking  to  it.       So 
nears  in  truth,  to  corpora  teness  arc  these  units  oi  ad 
ministration  that   irithin  ■  century  and  ■   half  its  ah 
si'iicv  gave  ili'ep  cause  for  reflection  to  a  chief  justice  of 
England." 

Most  striking  of  all  ire  find  those  vills  which  have  gone 
beyond  the  stage  of  villadom  and  attained  burghality. 
Wherein  lay  the  secret  of  thai  transition  ire  may  noi 
now  speculate;  nor  dare  we  venture  a  guess  as  to  the 

time  of  its  beginning.  '  For  us  the  important  point  is 
rather  what  was   in   the  minds  of  those  who  administered 

the  king's  law  when  they  spoke  of  boroughs.  It  is  un- 
questionable that  to  the  scribes  of  Domesday  Book  the 
borough    is    a    piece    of    land    like    shire    and    manor    and 

hundred;40  yet  in  one  curious  passage  the  writer  seems 
to  draw  a  vivid  distinction  between  the  power  of  person- 
ality the  county  may  have  and  that  of  the  town.  He 
will  allow  the  shire  to  speak  for  itself;  but  the  men  in 
Huntingdon  he  seems  to  conceive  of  as  in  no  sense  or- 

35  Stnbbs,  Srhrt  CharttTM  (ed.  Davis),  467. 
•    1   Stuhlis,  <  'nn.il it.  Hist.,  <>  ed,  130. 

37  Mait  land,  I ><>m,  s<l<ti/   Hook  <imi  Hi  uoml.  BBS,  n.  2. 

38  Set-  the  opinion  of  Kenyon,  C  J.,  in  Rnssrll  v.  Men  of  Devon, 
2  T,  K.  867,  872  (1788). 

•    All   discussion  of  this  problem  must   now  start    with   Mait  land's 

famous  chapter  In  Poamdajf  Hook  nn<i  Beyond,  172  219,  as  checked 
l»y  Professor  TaH  in  12  Eng,  Hist.  Rev.,  J7o\  Mr.  Ballard  has  forti- 
fied   llaltland's   theory,   perhaps   s   little   too   emphatically,   In   his 

ponn  MMjj    Horoiti/hs. 

40  Cf.  l   Domafdoa  Book  182  a,  (Hertford),  :\  a   (Sandwich). 


i?s       HISTORY    OF    THE    CORPORATION 

gamcally  one.        The  borough  is  a   piece  of  land  and  to 

it  corporatenesf}  before  tin-  Conquest  at  least,  seems 
lacking.  There  are  men  there,  it  ii  true  enough;  and 
ll«ni\  I  will  grant  to  the  men  of  English  Cambridge 
thai  the  barges  shall  be  nowhere  loaded  save  at  their 
port/  It  Is  in  a  similar  sense  that  bis  grandson 
speak  Thej    talk   of   living   men,   and    the   borough 

emfl  not  \»t  to  have  attained  the  abstract  character 
implied  in  corporateness.  Ye\  soon  a  different  language 
uill  be  spoken.     When  the  good  burgesses  of  Okehamp- 

ton    ^t  11    their   land    they   will    pay   to   lord   and    reeve,   but 

to  the  borough  as  well;44  and  the  drinking  that  the 
friendly  nun  of  Whitby  demanded  implies  the  possession 
of  a  common  purse.45  We  can  see  clearly  enough  how 
men's  thoughts  move  toward  the  idea  of  the  borough  as 
an  entity.  Bristol  in  1188  had  already  an  interest  dis- 
tinct from  that  of  its  citizens;48  but  such  nice  meta- 
physical differences  puzzled  the  good  draftsman  of  Dublin 
when  he  copied  the  Bristol  charter,  and  he  hesitated  to 
make  the  bridge  from  an  intelligible  plurality  of  citizens 
to  the  difficulty  of  a  singular  city.47  Bit  by  bit  what 
it  was  at  first  natural  to  attribute  to  the  men  of  the 
borough  the  borough  itself  will  come  to  possess;  so  that 
by  the  reign  of  King  John  it  has  become  natural  for  that 
reckless  prodigal  to  cast  about  his  free  boroughs  and 
their    rights.48      Magna    Carta    itself    personifies    a    city 

41  1   Domesday  Book  208  a. 

<^  Maitlaiul,  Cambridge  Borough  Omvrton,  2. 

«  1    Records  of  Nottingham    (Stevenson),  2. 

44  l    Fmser,  C»niixh,l  Ehrtinns,  82. 

4&  1    Whitl.y,  <'<irt.    (Surters   S.x\,  vol.  C9),  211. 

M  Bee  Ilickley,  Littl,    lt,<l  Hook,  where  the  charter  is  reproduced. 

4:  //;.</.  ,y   M„„.   Dor.  Inland    (Hulls  Ser.),  2. 

4*  Bee  hi    charter  to  Lynn  la  Rot,  Chart.  1 18;  to  Dunwka  in 

ibid.,  15!»;  to  Stafford  iii  1  Cal.  Charter  Hulls  71. 


HISTORY    OF    THE    CORPORATION        179 


it 


of   London    to    which    rigfatl    ha\r   been    annrv.l.''      Lost 
withiel     may     allow     a     stranger     to     keep     its     ta\»-rn. 

Northampton  will  elect  its  reew  md  coroner;  Shrews- 
bury,'-     I|>>wieh,r,:      and     Gloucester  U     will      follow     thut 

fascinating  example.     A    town   from   which   its   citixens 

may  take  "common  counsel"  haj  a  Suggestive  group- 
quality  ahout  it.  The  city  of  Worcester  paid  forty 
marks  to  the  aid  Henry  II  collected  in  1177;81  and  when 
Lion-hearted  William  grants  to  his  "burgh  and  burgesses'' 
of  Ayr  five  pennyworth  of  land,  tin-  reality  of  the  dis- 
tinction seems   incapable  of  disproof .'''      What    iras   that 

iimunn  of  the  city  of  Oxford  which  in  1214  had  a 
common  purse  wherewith  it  could  pay  penance  for  the 
murder  of  poor  scholars?  6' 

We  must  not  overstress  this  communal  ism,  for  in 
truth  it  is  ambiguous  enough.  What  we  shall  recog- 
nize is  the  undoubted  fact  that  the  draftsmen  of  the 
twelfth  century  see  here,  however  vaguely,  the  terms  of 
corporate  liability  and  are  striving  forward  to  express 
it.  It  is  an  effort  made  unconsciously  and  it  is  an  effort 
rarely  sustained.  The  transition  from  "borough"'  to 
"burgesses"  is  too  easy  for  the  clerk  not  to  make  it  with 
great  ease.  But  the  materials  of  change  are  there.  A 
mercantile  center  the  borough  is  to  become  with  its 
gilds    and    fraternities.      It    will    send   twelve    men    to    the 

<»  Magna  Carta,  Ch.  9. 

bo  R,,,.   //;,/.   M$$.  Cum.,   1901,  pt.   i,  328. 

6i    1    Records,  25,  8L 

&■-:    Rnt.   Chart.  \l\. 

63  BO*.   Chart.    UBB. 

64  Rat.    Chart.    5<i. 

66  />;,„■   //„//  28  Hen,  II,  (>7. 

6«   Sec   (  lairtrrs   of    A<ir.    1. 

6:    Wood,   Hist,  and   dntiq.   of   the    UwbO.   of  Oxford,  s.   a.    1214. 


180       HISTORY    OF    THE    CORPORATION 

assize  .iikI  two  men  to  the  parliament.*1  It  has  ■  power 
of  self  c  1 1  r«  it  mmi  winch  La  earlier  nod  more  real  than  that 
of  all  other  communities  in  England.     Bui  in  these  early 

dajl  it    11  an  administrative  ana   rather  than  a  OOiporatC 

personality  It  rctaim  much  of  its  old  rural  character. 
Iu  heterogeneouj  tenure  reminds  it  that  a  sense  of  cor- 
porate Ownership  IS  not  yd  at  hand.  It  has  still  to 
fight    its   way   to    independence,   and    it    will    find    that    the 

road  thereto  Lies  through  the  cotters  of  the  king.  The 
time  when  it  will  become  a  new  type  of  community  datei 

rather   from  the  a<re  when   kings   will   Bel]   somewhat    easily 

their  liberties  thai  they  may  establish  their  sovereignty 
with  the  profits  so  gained.     The  liber  burgut  in  a  full 

and  corporate  sense  Is  perhaps  the  offspring  of  parlia- 
mentary representation. '"'"  What  is  at  this  time  signifi- 
cant IS  the  fact  that  the  desire  for  unity  and  the  privi- 
leges  that   give  it  form  come  from  below.     There  is  no 

imposition  from  above.  The  purchase  price  stands  for 
a  common  aim.  The  men  of  London  who  took  the  county 
of  Middlesex  to  farm"1  had  a  fine  sense  of  collective 
effort.  The  oath  they  would  take  within  sixty  years  may 
derive  from  foreign  models;62  but  it  stands  for  the 
growth  of  a  spirit  which  will  not  find  it  difficult  to  take 
corporate  form.  That  of  which  the  early  history  of 
the  English  boroughs  will  leave  a  firm  impression  is  the 
fact  that  not  even  the  pressure  of  medieval  centraliza- 
tion can  hinder  their  growth.  They  will  remain  the 
(-titers    of    commerce.      Their    fairs,    their    markets,    the 

ss  cf.  1  P.  ft  M.,  a  ecL,  684. 

M  ii.it.,  681, 

«o  Cf  //,;,/.,  540  41. 

«»    Stul. I.x,   S.hrf    ('hart,,;    (cd    Havis),    l'JP. 

•'-•   Stul.l.s,    Sthrf    Chnrtrrs    (e&    Davis),    245;    1    Stubbs,    Conttit. 

Hist.,  '■  .  ii ,  tiiv  07j  Round!  Commmm*  of  London.  3 


HISTORY    OF    THE    I  ORPORATION        181 

protection  thev  can  offer  to  merchants,  th<  immunii 
thcv  have  purchased  all  these  foster  in  them  thai 
precious  spirit  of  Localism  irhich  gives  to  each  borough 
it>  own  unique  history.  They  broke  the  hard  cake  of 
feudal  custom.  Th<  \  irert  to  cs  I  <>IV  th<  control  of 
their  lord.  Then  wm  in  them  1 1  m  potentiality  ol  ipon 
taneous  development  irhich  is  the  fundamental  basis  of 
corporate  Life,  That  irhich  they  are  no  royal  grant 
nor  Lordly  privilege  has  made.  But  what  they  are  to 
become  depends  <>n  the  powers  of  other  men.  The  prob- 
lem of  their  future  is  hound  up  with  those  powers. 

in 

Yet  what  is  striking  is  the  failure  —  the  borough  and 
the  church  apart  — of  these  groups  «>f  men  to  pass  from 
collectivism  to  a  corporate  character.  The  one  step 
irhich  seems  to  Lie  most  readily  before  them  is  the  one 
step  they  do  not  take.  Manors  and  villa,  counties  and 
hundreds,  these  Lose  bit   by  hit   the  fine  sense  of  unifi    I 

separatism  which  had  distinguished  them.      Soon  after  the 

Angevin  dynasty  has  established  itself  ire  cease  to  expect 
such   development.     Individuals   become   the   controlling 

factors  in  their  history.     Aj  early  as  the  twelfth  cen 

tury    suit    of   service   at    the    county    court    has    become    a 

resented  burden. '  Its  direction  passes  to  the  sheriff; 
immunities  deprive  it  of  its  representative  character; 
the  possessory  assises  made  its  jurisdiction  comparatively 
unimportant.  If  it  remains  as  an  administrative  art  i 
its  control  is  exercisedj  at  hast  from  the  time  of  Richard 
I.     by  the  conservators  of  the  peace;  and  when  under 

M   M.iitlan.l  in  B  /•.>/.   IIi,l.   /.'.:•     Mfl. 
M  1   P,  ft  M.,  9  «•!  .  KM 

M   Stllbbs,    S.hrf    Charters    (c(\.    Dftvfc  >.    J    7.      Cf,    1    StuMM,    0SW- 

$tit.   ///.'..  0  cd.,  570. 


L89       HISTORY    OF   THE    CORPORATION 

I   dward    III    tliat    oflirr    v  tahlUhcd    in    something   like 

iti  modern  form,*  it  proyi  i  sun  il  us  gradually 
to  lupersede  the  ihire  court  a->  the  unit  of  Local  sdminii 
tration.  It  remained,  indeed,  an  electoral  center;  l>u t  its 
communal  character  is  entirely  lo>t.  Even  more  tragic 
ia  hnndredaJ  history.  Tin  v  had  began  quite  early  to 
piss  into  private  hands.  Offa  of  Afercia,  m  at  leaai  the 
Bishop  of  Salisbury  claimed/1  had  granted  to  his  pre- 
decessor the  hundred  of  EUunshury  in  Wiltshire.  Tin 
of  the  hundredi  of  Worcestershire  belonged  in  the  eleventh 
century  to  the  church  of  the  cathedral  city.  In  I25fi 
more  than  half  the  hundreds  of  Wiltshire  were  in  private 

hands;  nor  is  the  tale  of  Devon,  some  seventy  yean 
later,  lesa  complete,  Communal  control  become!  in- 
dividual control.  The  units  of  local  government  cease 
to  be  bodies  that  may  hope  for  corporateness  and  be- 
come Uving  men.  The  hundred  becomes  an  object  of 
property,  and  as  such  its  internal  development  ceases  to 
burden  or  to  influence  the  history  of  corporations. 

Of  manor  and  vill  the  history  is  a  similar  one.  Seign- 
orial  jurisdiction  sweeps  them  into  its  sway.  The  kings 
are  fairly  generous  in  tbeir  grants;  and  even  if  the  im- 
munity may  conveniently  be  limited  by  the  skill  of  royalist 
lawyers,  still  the  great  inquiry  of  Edward  I  shows  that 
immunization  has  gone  far.7'  But  perhaps  more  serious 
still  is  the  jurisdictional  element  implicit  in  the  character 
of    feudalism.      The   lord   has   tenants;   he   holds   a   court 

««  (f.     1     I'.clw.    Ill,    St.    II,    §    16;    18    Bdw.    Ill,    St.    II,    §    2;    84 

Bdw.  Ml,  Ch.  l. 

"7  /,',,/.    //,/„,/.    II,  J31. 

««  1    DoMOMfaf   Bool    172  b. 

««>  1   P.  &  M.,  2  rd.,  MM 

70  1    P.  &   It,  2  fd.,  572-73. 


HISTORY    OF    THE    CORPORATION        L8& 
for  those  tenants/1     Thai  right  will  Km   exercised  so  far 

ii^  rOjaJ  claims  will  allow.  1-  tidal  justice  was  a  potent 
\uapon  in  the  lubjeci  ion  of  tin-  free  iii' ii.  K\m  if  all 
feudal  power  be  in  its  origin  —  as  post-COnquestusJ 
theory    makes    it  a     royal    power,    still     the    significant 

fait   remains  that  the  primary  nature  <>f  tin-,  legal  n 
chinery  is  its  personal  character.     The  courts  an-  men'i 
courts.     The  justice  in  them  will  he  lord's  justice;  ami 
however   (irmly   tin-  little  community   may   cling   to   iti 
pathetic  antiquarianism  it  is  many  centuries  befon   royal 

justice    will    be^in    once    more    to    protect     tin-    force    of 

custom.  It  is  a  steady  tale  of  oppression  that  we  read. 
The  communities  of  these  villages  are  feeble  enough;  and 

they    become   the   easy   prey   of    the   king   and    hi*    Lords. 

That   process   of   conquest   and   subjection   SCCU18    steadily 

to  have  deprived  these  groups  of  what  pretensions  they 

had  before-  possessed  to  corporatenCSS,      The  land   is    I 
Ognized    on    a    personal    basis.      If    the    freeholder    retains 
vague  rights  of  common,  a  period  of  inclosures  will  teach 

us  for  just  how  little  that  vagueness   really   stands; 

and  even  Bracton  seems  to  think  of  them  in  terms  which 
suggest  a  personal  origin.74  The  Statute  of  Herton  Is 
a  weapon  in  the  lord's  hand  of  which  he  will  not  fail 
to    make   good    use.      That    "sufficient,    pasture"    which    he 

is  to  leave  for  the  use  of  freeholders  seems  on  the  irhole 

a   serious   invasion   of   the   manorial    community.         What 
n   Cf.   Domesday  Book  and  Beyond,  bV  ff. 

72    //,,,/..    BIS    ff. 

Ifr.  TftWney's   Agrarian  Problem   in   th*    Sixteenth  Century  lias 
.  ntly   told  VOOtX    hrillmntly  that   pitiful  itOfJ. 

m  Bracton,  f.  880,  980  b. 

9  i  the  freight]   ranuki  of  Prof c— or  Vinogradoff,   VUltim 
in  Bmflam&t  273  :v.    He  thinks  that  the  BUtetc  oi  bferton  actually 

changed  the  common  law. 


1st       HISTORY    OF   THE    CORPORATION 

is    tlit     criterion    of    sufficiency    save    custom?      And    who 

shall  #ive  custom  the  binding  force  of  law? 
These  communities)  in  fact,  become  hut  little  more  than 

quasi-geographical  «-\ i »n  ^  ions.  The  power  thej  had 
once  possessed  of  a  suggestive  self-government  passes  to 
tin-  hands  of  natural  persons.  There  i^  little  enough 
need  in  such  a  result  to  speculate  deeply  about  the  nature 
<>f  their  personality.     The  rules  of  [si  will  lit  lord  and 

king   and    freeholder   easily   enough.      The    nctil    for    their 

expansion,  in  this  context  at  least,  loses  its  force.     '•The 

figure   of  the   ideal    person    vanishes,"   say    Mait  land,7''  "or 

rather  at  times  it  Beems  to  become  a  mere  mass  of  natural 
persons.*1  Certainly  this  is  true  of  all  medieval  groups 
save  those  of  the  borough  and  the  church.     Their  col- 

lectiveneSS   crumbles    into   dust    at    the  approach   of   men. 
Nor   does   it    appear    that    the   lawyers   of   this   age  had 

verv  different  notions.     The  word  commumta*  is  a  large 

and  ambiguous  one.  Neither  the  writers  of  textbooks 
nor  chronicles  use  it  with  any  precision.  The  commn- 
iii'ns  bacheleriat  Amjl'mc'1  can  have  heen  in  no  legal 
sense  a  corporation.  What  Bracton  will  say  of  the 
UmifOeriitOM  will,  indeed,  show  some  continental  influence; 
hut  at  best  he  is  troubled  and  confused  by  what  he  has 
thereof  to  Bay. '"  Kxactlv  those  things  of  which  we 
should  in  this  context  expect  some  speech  —  the  things 
uhieh  on  the  continent  at  hast  were  troubling  vastly  the 
Italian  law  \»  is  —  are  absent  from  his  survey.79  The  re- 
lation of  the  corporate  body  to  tin-  crown  —  the  funda- 

:••    I    P.  ft   M..  2  t  .1 ..    t"_\ 

n  Stnbbt,  s,i,rt  OkmUn  (e&  Davis),  B81.    Cf.  '-'  Stabfas,  Oomtit. 

ji,  >    d  .  «i .  s7. 

Cf.    M. it  I, iid,   Bracton  and   Azo   (SHdrn  Sot.),  W,  BO. 
T*    Maitland    lias    pointed    «>ut    that     BrSCtOO    KlSI    DOWheTC    rrali/.rd 

that  t he  ecclc  ii  tica!  bodi  i^  an  umtotnitM.     l  P.  ft  M.,  -  «-d.,  || 


HISTORY    OF    THE    CORPORATION       186 

mental  problem  in  the  theorj  that  was  to  be  evolved — 
be  will  n<>t  even  discuss.     Surely  the  cause  ol  lucb  eon 

spicuou>    al)M  nee    can    but     he    a|  >]  >;in  Fit     on    the    surfa<  S  . 

If  tin  it  is  lacking  s  theorj  of  corporations  it  ii  becat 
thai   which  men  later  deem  ■  corporation  is  not   to  be 

found. 

The  borough,  admittedly,  is  different  ;  bui  the  borough 

will  not,  at   any  rate  before  the  fourteenth  century,  SSsis! 

us  to  evolve  a  corporate  theory.  It  will  not  aid  m 
because  the  theory  which  governs  its  relations  to  the 
state  is  one  which  denies  the  necessity  of  speculation 
to  its  character.  Every  borough  is  some  person's  bor- 
ough. Every  borough  derives  its  privileges  and  immu- 
nities from  a  grant  to  be  produced  at  will.    Spontaneous 

it  may  be  their  growth  is;  and  that  spontaneity  will 
preserve  their  communalism  for  a  day  more  receptive  to 
the  approach  of  theory.  But  act  tiny  must  not  with- 
out roval  warranty.  That  which  they  will  obtain  is  a 
matter  of  gold  and   silver.      The  king  drives   a  hard  and 

fisty  bargain.  The  most  famous  definition  of  a  cor- 
poration which  the  new  world  has  given  to  the  old  seems 
best  to  tit  the  matter.  It  is  with  franchises,  financial, 
juristic,  economic,  that  we  are  concerned.  We  seem  to 
have  a  scale  of  values  from  the  vast  freedom  of  London 
to  the  emulanl  anxiety  of  a  tiny  township.  Hut  no  im- 
munity can  he  obtained  by  any  process  of  self-institution. 

The  rights  are  the  rights  of  the  lord  or  the  king,  and 
it   is   \crv  char   that   they  are   for   sale.       And   if   they  air 

for  sale  they  are  revocable,  for  the  will  of  kings  is  arbi- 
trary, and  each  hurst  of  temper  will  begel  repurchase. 

Sufficiently  late,  indeed,  this  concession  theory  remains. 
The  stout-hearted  Tudon  recked  little  of  group-cor- 
porateness    in    their   effort   after    unity;    and    the   making 


L86       HISTORY    OF    THE    CORPORATION 

and   unmaking  of   boroughs   was   a    j/eapon    they   brought 

not  seldom  into  u  Those  citiea  winch  forfeited  their 

charter!  under  theouo  warranto  «»f  Charles  II  illustrated 
no  differenl  theory,       Tim  "spoils  <»f  towns'1  with  irhichi 

as    North    tills    u>/J   defi'ievs    returned    from    his    Bloody 

PiBsuu  ii  i  significant    reaponM  to   Monmouth's  app  d 

.  niht      the      "Court       Parasitef      and      Instruments      of 
Tvrannv"  who  had  urged   the  right    of   fnrfeitur  Hut 

it  is  in  the  beginnings  <>f  our  history  that  pre  must  search 

for  the  origin  of  these  ideas.       All  goes  back  to  the  king. 

When  Archbishop  Thurstan  srished  his  men  of  Beverley 
to  bare  the  privileges  of  the  citizens  of  York  he  most 
have  the  royal  permission  to  that  end**4  Henry  II\s 
clerks  had  quickly  some  questions  to  ask  (also  some  fines 

to  levy)  when  the  hutehers  and  pilgrims  of  London  sought 
to  set  up  their  gild-.  Aylwin  of  Gloucester,  who  w.t> 
perhaps  somewhat  Frenchified  by  travel,  iras  soon  brought 

to  see  the  advantage  of  an  English  model  when  the  ex- 
chequer fined  him  one  hundred  pounds  for  his  Gloucesfe  P 
experiment  ;         and,     -i\     years    later,    if    Thomas    from 

beyond  the  Oihc  escaped  more  lightly,  the  fine  of  twenty 

marks   is   proof  of  royal  control/'       As   late  as  1805  the 

townsmen  <>f  Salisbury  could  only  escape  the  burden  of 

an  episcopal  tallage  which  had  grown  ruthless  by  placing 
themselves    on    the    royal    hands/'       Kven    London    is    not 
*0    1    Hallam,  GoUitU.  llixt.   (Everyman's  eel.),  47. 

n  2  H'i'i.,  m. 

North's   Bmm  ».  828. 

Sit  the  interesting  citation  in  Carr,  CorporaUomM,   17(>  71.     The 
Commons  Ordered   it    to  be  hnrned  hy  the  eommon  hangman. 
84   Stuhhs,   S>hrt    Charters    (ed.    Davis),    181. 
»5    Madox,    //,'.«/.   nf    Exrh,nu,r    (ed   Of    1711),  390. 
»«    UA  I ..   88L 
«f    Madox,  Firmn    Jlunil,  .T>. 

••  i  Bet.  r*ri,  175- 


HISTORY    OP    THE    CORPORATION        I    , 
sufficientlji  powerful  to  irithstand  the  rovul  hm^t.    The 

part  it  played  in  the  historic  crisis  of  Ilcnrj  Ill's  reign 
B/afl  sufficient  to  entail  tin-  temporary  abolition  of  it-> 
n  i  a  \  <»ralt  \  .  Kdward    I     (who    ti-r.it..  1    York    in    similar 

fashion)  '"'   kt  j»t    the  Liberties  of   tin    citj   in  his   hands   foi 

twelve  years  whtn  the  mavor  sought  to  restrain  the 
justices  in  eyre  from  entering  it.  When  London  ch.it".  .1 
at   tin-  exactions  of  Richard  II,  he  seized   the  occasion 

of  a  chance  riot  to  revoke  its  rights  '•'  and  t.»  remOTC 
the  Common  Pleas  to  York;  and  only  the  compassion 
of  the  queen    secured    their    restitution."       l.duard    I    held 

London  liable  for  the  trespass  of  its  officers;      and  Dun- 

Wich  Buffered  in  a  similar  fashion.9'  \or  did  the  fad 
of  incorporation  matter.  When  the  citi/ens  of  Wainflete 
took  toll  unjustly  the  fact  that  they  had  no  charter 
served  in  no  way  to  protect  them,  for  such  towns  can 
sue  or  be  sued  as  the  men  of  the  kin:  Even  an  amor- 

phous body  like  the  "Knights  of  the  bishopric  of  Dur- 
ham91 can  lie  in  the  royal  mercy.00  The  mere  enumeration 
of  the  towns  vested  in  the  king  is  evidence  of  his  sub- 
stantial power;1  1  and  when  he  grants  out  his  powers  for 
money  —  as  the  venality  of  Richard  I  did  with  unceas- 

■  * 

"0  l  Stabbs,  roust  if.  TJis/.,  c>  ed.,  5R8. 

pn  i  Rot  Pari  902. 

h  i  Stabbs,  Con»Ut.  Hist.,  <;  ,.!.,  590. 

p2  Higden,  Poiyekrowteom,  EX,  - 

M  7  Kymer,   /'-»,/,  rv,  'JIM. 

p<  Higden,  Polychrouicou,  IX.  *J7l. 

95    M/idex,   Hilt.   <>f   i:.rch,o„,  r,  f.'^. 

Ofl   IffadOK,    P(nM    /o/r./i,    154.      P©F    ■    similar    instance    ef    Dover, 

nc  Ryftej,  Plae.  Port.,  js;. 

07   M,i(ln\,   Pfrma    Bwrgi,  <>*t,  ami  «»t her   instances  there  cited. 

»»»  M.kIdx,  Plrwa  Bwrgi,  I 
••  TbUL,  95. 

ioo  Sec  the  striking  itel  in  M,uln\,  Pinna  Bnroi,  t  ft. 


188       HISTORY    OF    THE    CORPORATION 

ing  d,i ml    l  —  li«  draws  a  firm  distinction  between  p<>> 
lion  an<l  ownership. 

Corporateness  we  d<>  noi  iaj  the  fact  of  inoorpoi 
tion  is  clearlj  here  preserved;  and  it  i>  preserved 
because  it  is  profitable  t<>  the  crown.  Where  men  ad  in 
group  unity  vmi  can  fine  them,  if  the  single  assumption 
be  niidt  of  an  action  which  derives  from  royal  kindlim-  ■>. 
The  king  concede!  powers:  he  is  real  enough.  And  so 
long  as  the  relation  of  a  borough  i^  for  the  most  part 
with  him,  a  speculation  as  to  the  nature  of  burghalitv 
In  here  as  elsewhere  nnneeded.  Bui  with  the  borough  a 
new  day  will  presently  dawn.  The  England  of  the 
fourteenth  century  will  begin  to  untie  the  jealous  knot  of 
separatism.  It  will  begin  a  hundred-years1  struggle  with 
Prance  and  find  a  sense  of  unity  in  that  Buffering,  while 
the  horrors  of  the  Black  Death  will  spell  consolidation.1' 
There  were  new  needs  to  satisfy;  and  new  ideas  are  re- 
quired for  their  satisfaction. 

IV 

Let  us  go  back  to  our  churches.     Of  ecclesiastical  com- 
munities medieval  England  has  in  truth  a  plethora,  foi 

our    ancestors    w»re    pious    men,    willing    enough,    as    the 

charters  bear  witness,  to  buy  their  salvation  ai  the  ex- 
pense   of    their    property.      And    these    communities    are 

voluntary   in   character  with  a   definite   purpose   behind 

them;    it    is    not    difficult    to    feel    thai     their    wills    are    to 

serve  those   purposes.101     Who  owns   their   possessions? 

ioi  Stnbbs,  s.i.rt  chart*  r*  (ed  Davis),  25& 

I  r.  m  i<!«>\\  phrase,  "He  had  ■  compled  lebio  <>f  [the  town] 

with  all    its    parts   and    adjuncts,"    l,,r.   rit .,    11. 

Cf.  i  Cunningham,  Growth  <>f  BngHiA  Imdmttrg,  BTfl  ft". 

i  Cf,  i  P.  a  at  -'  «d..  :»in. 


HISTORY    <>F   THE    CORPORATION       189 

That    is    a    nimv    t  roublesome   question.       Lands    from    1 1  *  •  - 

earliest   times  arc  church  lands;  and  the  opening  wordi 

of  Knglisli  law  ascribe  a  special  lanctity  lo  tin  property 
of  God  and  of  the  church.11       Hut  what  is  the  church  thai 

n\uh    them    and    what     is    the    nature    of    their    possession? 

Hie  early  rules  of  law  are  rather  fitted  to  dial  irith  the 
problems  of  natural  or  of  immortal  men  than  of  a  group 
which  raises  a  metaphysical  inquiry.1  It  is  simple 
enough  when  the  property  of  the  diocese  is  at  the  dis- 
posal  of  the  bishop;101  hut  for  a  cellular  and  separatist 

England  it    is  too  Bimple  by  far.      If  the  church  is  owned, 

it  will  also  own;  and  Bracton  lias  noted  the  difference 
between  the  ownership  and  the  right  of  presentation  to 

its  control.1"  If  the  church  owns  land,  some  specula- 
tion there  must  he  about  the  nature  of  that  church;  and 
there  are  lawyers  enough  (canonist  at  that)  anxious  to 
weave  theories  that  will  give  the  ecclesiastical  community 

tla-  full  benefit  of  its  powers.     Mysticism,  of  course,  we 

shall  have  early,  for  St.  Paul  had  #iven  to  Christians  the 
picture  of  an  ecclesiastical  organism,10'  and  men  like 
John  of  Salisbury  and  the  great  Cardinal  of  Cusa  will 
push  the  comparison  to  the  point  of  nauscation.110  Crude 
as  is  this  anthropomorphic  conception,  it  is  not  without 
its  influence  on  law.  If  the  body  ecclesiastic  is  to  be 
given  substantiality,  a  head  must  control  its  action;  and 
the  abbatial   church  Will  be  so  much   the   possession  of  its 

Laws  of  Kth.lUrt,  Ch.  I,  StubtM,  S,l,ct  ClHirt,n>  (ed.  Davis), 
CO. 

loe  (f.  :t  Holdsworth,  Hilt.  F. n<i.  LflW,  B8& 

i"7   1   P.  &  M.,  2  ed.,  V.H. 

ioh   Bracton,  f.  M. 

io»  Bpbt  H.m...,  XII,  t,  r,;  I'pist.  (or.,  XII,  13,  11:  Split  CoL,  I. 
18,  91 

IM  Cf.  Cirrkr,  Political   Theories  --/  tin    Middl,    A  ,■  .    1  \1. 


190      HISTORY    OF   THE    CORPORATION 

abbot  that  Dunn  mI.i  v  Honk  can  indifferently  equate  him 
with  church  ami  convent.1"     That  i>  perhaps  the  more 

natural   u  h<  n   it    i>   W -nn mh<  n  d   that    the  monks  ai  <    legally 

d<  .id  and  thai  no  longer  the  subjecti  of  rights.     Cei 

taml\    a^    late   as    Edward    I  V    that    rind    of   a    head    for 

corporate  activity  will  giw  much  trouble.11  But  re- 
striction! mutt  be  laid  on  that   power  since,  after  all,  the 

rights  and  purpose!  <>f  founder!  mud  !>«■  protected. 
.Mad land  ha!  printed  a  Register  of  Writ!  from  the  reign 
of  II» -in* v  III  which  contains  the  ro\al  writ  protecting 
the  convent  againal   the  forcible  alienation  of  a  former 

abbot  —  a  protection  <>f  canonical  law;113  and  the 
Statute    of    Marlborough    in    obviating    the    limitation    of 

persona]  action!  bv  the  death  of  the  wronged  abbot  in 
Borne    sort    emphasizes    conventual    rights.114      As    the 

year!  go  by  these  convents  will  bring  their  actions  in 
a     name     which     betokens     incorporate     aggregation;115 

the  "dean  and  chapter  <>l"  St.  PaulV  is  neither  dean  nor 

chapter.      It    has   B   connecting  link   about   it  —  shall   we 

v    a    seal?110 — which   perhaps   we   may  best   term   its 

corporate  personality.     And  when  Bracton  talks  of  a 

body  that  endures  forever,  even  though  death  may  thin 
its    ranks,   though   the  language  is  vague  and  hesitant   it 

i-  clearly  reflective  of  new  ideas.117 

And    what    is    perhaps    of    fundamental    import    is    the 

thought  to  which  Innocent  IV  gave  decisive  expression.113 

in   I   P.  &  M.,  2  ed.,  004 

in  v.  B.  is  ii. ...  VI,  r.  i<;.    V.  B.  I  Bdw.  IV,  f.  15,  81,  etc. 

_'  Coll.  I'a,,,,,.   Ill,    No.    t  ',      (I.  Corpus  Juris.  3,   \,  J,   10. 

n*  BUU.  of  Vortborompk,  Ch,  98  (fi2  Hen.  III). 
in  (i.  Bracton,  NoU  I     <A.  PI.  489,  864,  etc. 
im  cf.  v.  B   U  Bdw.  ill,  M,  88  (RoOi  Series). 

in  Bi  "t«.n.  f.  .',7t-  b.    The  comparison  Ii  to  •.  Bock  of  rimp  which 
r<  in  tin    iif      inn-  though  the  IndiridueJ  iheep  die. 
rke,  QouasstnsehafUroeht,  279  ff. 


HISTORY    OP    THE    CORPORATION       191 
Whether  In*  in  fact  perceived  the  vasi  lignificance  irhich 

lav  Ixhind  his  nftrihution  of  fictitious  |"  I  '-onaht  y  to  Com- 
munities   may    perhaps    be    doubted*  Hut    tin     phra 

irhatever  iti  author  meant  it   to  imply,  ^a\.   i  cactlv  tli<> 
impulse  to  the  current  of  men's  thoughts  for  irhich  it 
had   long  been  waiting.     For   Immediately   ire   have   the 
aets  of  a   person)  the   nature  of   t li.it    person   mav   l»<- 

matter  of  debate  Inevitably  the  phrase  of  a  Pope  be- 
gets discussion.1*0  What  i^  more  important  is  the  means 
it  gives  us  of  passing  from  anthropomorphic  terms 
(though  retaining  the  memory  of  them)  t<>  representa- 
tive action.  If  the  group-perSOU  i>  to  act,  it  will  pro 
no    small    convenience    to    designate    those    through    whom 

its  action  may  be  effective.     It  is  difficult   to  persuade 

all  men  that  you  are  right.  Vet  it  seems  char  enough 
that  in  the  early  church,  as  at  Elvira,  for  instance,  and 
at  NlCS3a,1M  unanimity  w;i>  essential;  uoi'  is  there  any 
suggestion  of  ought  save  unanimity  at  the  fifth  and  sixth 
crcumenical  councils.1-5  It  seems  plausible,  indeed,  to 
urge  that  not  until  the  Council  of  Perrara  did  the 
majority  principle  obtain  its  full  sway  in  the  corporate 
church.114      Hut    long    before    this    time    the    COncepI     of 

representative  action  had  been  clearly  understood.     The 

111  Cf.    on    this    Mr.    H.     \.    Smith's    pertinent    critiei  in.    /.-/: 
j4**nciatinns,    UQ   57.      He   seems    to   in."    to   have   shown   pood    ground 
for  doubting  Dr.  Gierke's  picture  of  Innocent  as  a  great   speculative 

lawyer. 

Ill  3  C.icrke,  Ornnsn -nsrhaftarrrht ,  227-85. 

121  I  Hefele,  Hiti.  d—  0<meU$t  ni. 

122  i hid.,  320. 

123  \  jwl,  164 

IH  2  ibUL,  309,  101.  Even  tlien  it  is  n  two-thirds  majority;  and 
the  attitude  to  the  dissent  of  a  tingle  archbishop  to  th«-  resolutions 
on  the  Filioque  clause  is  very  striking.  -  Hefele,  ffi.--f.  &4i  <'on- 
cihf,  Ml, 


ltt       HISTORY    OP   THE    CORPORATION 

( i|n...ih»i>     had     begun,     if     with     Invitation,     U)     < ' .  1 1 1     the 

delict  of  a  majority  of  ■  church  tin-  delict  of  tin-  church 
•  If.         Eloffredui  in  the  middle  of  the  thirteenth  oen- 

tur\  was  discussing  corporate  personality  with  the  com- 
fort vrhich  comei  from  uiu !•  i>t fending ;  fend  Johanna 
Andrea-  found  little  difficulty  in  emulating  that  rignif] 
iit  example.1  It  becomei  evident  to  men  that  irhat 
is  important  is  not  bo  much  unanimous  opinion  as  cor- 
porate opinion;  and  t  he  v  begin  to  realize  that  corporate 
opinion   is   largely  a   matter  of  form   to   which   the   verdict 

of  a  majority  will  give  substance.1*1  And  bj  the  time 
of  the  post-Glossators  • — and  rerv  notably  in  the  great 

Bartolus  ltl —  the  idea  of  the  group  as  a  corporation  is 

fullv  and  strikingly  developed.1*0 

Nor    was    it    difficult    to    apply    these    new    doctrines    to 

the  great  orders  which  were  springing  up  at   the  behest 

of  Francis  and  of  Dominic.  Dominic  especially  i->  one 
of  the  greatest  of  federalist  statesmen.  Almost  from 
the  outset  the  order  was  cognizant  <>f  representation  as 
the  basis  of  corporate  action.1.  It  does  not  seem  un- 
natural   to   Suppose   that    the   idea    passed   from   the    Black 

Friars  to  the  convocation  of  the  English  church.'  '     But 

One  of  the   primary  objects  of  convocation   is   fiscal;  and 

the  kings  must  have  soon  discovered  that  representation 

i>  an  admirable  method  of  countering  such  absentia!    re- 
ft  .</..   UW   gkm   to  L.   160,  §    1,  D.  50,   17,    10  C.    1,  2,    Verbo 

<  'nrriiiinin.1. 

Ill   (  f.  fiis  Qmaentionps  Nahhathina§t  28,  27. 
Ill   .F<.li.    Anclr.    Nov.  s.c.    Hi,  in    \'I.  B,    I.  n.    I. 

<  U)   C.   M,   C.    12,  (j.  2,    Vfbc   AccutawH.     (f.   ;j  Gierke, 

Ot  i  ■>.irhnft.irrrht ,  848,  for  a  striking  example. 

I  i    <• .   n.  Sidney   WoouT,  Bortohu,   128  -'1.   160-61. 

13,1    .'{  (iierke.   <  •'  •  nossennchmfl  xr>  rftt ,   .\r>{. 

1*1    Barker.    I  }>•    Pominican  Order  and  Convocation,  \  ff.,  18. 

132  ILi,l.,   V!»,  51. 


HISTORY    OF    THE    CORPORATION       198 

calcitrancr  as  thai   of  Geoffrey  of  fork.        Certain] v 

little  l> v  little  the  idea  teems  to  follow  a  secular  path. 
Hut  majority  action  did  not  come  lightly  into  parlia- 
mentary affairs.      As  late  a-   1290  tin-  barons  could  hin.l 

their  absent   peers  only  quantum  in  ijmm  est       and  we 

do    not    know    the    extent    of    that     pou.r  (  'out  uniae  \  , 

of  course,  merited  and  met  with  punishment;  but  the 
medieval  idea  thai  each  group  in  the  realm  may  bargain 
separately  about  Ms  ratability  struggled  long  and  hardily 

before  it  died.  What  slew  it  uas  the  creation,  in  1295, 
of  a  fully  representative  parliament.1*  The  "Common 
assenl  of  the  realm*1  of  which  the  Confkrmatio  Cattarum 
makes  such  impressive  mention,1*1  means  finally  that,  for 
fiscal  purposes  at  hast,  the  kingdom  has  become  incor- 
porate. "It  was  no  longer,*1  says  Sfubbs,1'  "in  the 
power  of  the  individual,  the  community,  or  the  estate,  to 
withhold  its  obedience  with  impunity."  Somewhere  or 
other  the  men  of  the  kingdom,  great  and  humble  alike, 
are    present     in    Parliament.      That    commune    consilium 

regni  which  henceforward  figures  so  largely  in  the  pre- 
amble of  statutes  is  the  sign  of  a  change  drawn 
from   ecclesiastical    example.      The   administrators   of   the 

thirteenth  century  are  Learning  the  lessons  of  the  canon 
law.  Surely  in  this  aspect  we  are  to  read  the  statute 
of  Mortmain  as  the  result  of  a  growing  acquaintance 

of  the  common  lawyers  with  the  nature  of  groups  which 
the  canonists  have  already  long  envisaged  as  immortal.1 

The  ecclesiastical   community,  moreover,   comes  with 
i  Btabbs,  O&mitit.  ///.</..  0  ed,  K2, 

is*  a  ibid.,  aaa 

las  Shit. I.,,  OomtUt.  HUt.t  <;  ed,  265. 

stui. b s,  s.i.rt  OhmrUf   (ed   Davis),  490. 

9  Stubbs,  Cou$tU.  lli<t  .  S  ed,  fl 
w  8  Holdsworth,  Hitt,  /■:«./.  Lew,  BIT. 


[94       Hl-ToKY    OF    THE    CORPORATION 

increasing   1 1 «  ■  j 1 1  *  n < •  \    to   court.      It    thai   compeU   DMH    to 

■peculate  upon  its  natun.  They  will  learn  why  the  new 
abbot  will  set  aside  an  irregular  conveyance  of  his  pre- 
decessor. Tin  y   will   theorize  as   to  why   mOUSStlf  tort 

is  at   bottom  conveutua]   tort.         1 1  \ in  tin'  conception 

of  tli«    church  as  a   perpetual   minor  will  at    anv   rate  make 

them  see  that  tin-  church  lands  arc  not  the  possession  <>f 
its  incumbent.14      The  canons  of  Hereford  may  !»«•  .sued 

irhere  its  particular  canon  has  don.-  wrong.141     Even  if, 

M    Maitland    has    pointed    out,'*      OUT    lawjeil    will    ham 

less  than  might  h«  hoped  from  examples  that  derive  from 
quasi-despotism,  the  mere  fad  of  meeting  is  important. 
It  is  important  because  it  prevents  tin-  knowledge  of  new 
ideas  m  to  corporateness  from  perishing  at  birth.     The 

dergV    are   a    litigious    race;   and   the   rules   of  their  legal 

governance   must    have   compelled   a   frequent   resort   to 

the  (  <>!]>/is  J /iris  from  which  their  inspiration  was  derived. 

There  our  English  lawyers  will  learn  how  majority  action 

i>   corporate  action  and  how   the  corporation   is  a  person. 

And  if  they  are  slow  to  see  the  significance  of  so  much 
sbstractnesB,  there  will  yet  come  a  time  when  the  move- 
ment from  church  affairs  to  the  problems  of  the  lay  world 
may  he  made. 

V 

That    Bracton  could  call  the  town  an  umoersitas  is 

perhaps    accident     rather    th.in    design.144       Yet     it    is    the 

borough  which  compels  our  Lawyers  to  recognise  the  sig- 

139  i  p.  &  M.,  _»  ,(!..  604. 
mo  Y.    |>,.    |S    Bdw.   Ill,  Mich.   PI  5. 

mi    i    |\  ft    M.,  •_•  ,(!.,  B0&     Bracton,  f.  M  b  is  the  fundamental 
j,       .,•_'.-. 

141    n„rif.    .1l.hr>  v.    BE 
M:    1    I'    \    M  .  J  ,  ,| .,  BO& 
m    Br.-it-tciri.  f.  228  b. 


HISTORY    OF   THE    CORPORATION       ids 

nificanc.     of    theory,       At    what    ili\     the    Ithrr    bufQ        I" 

comes  in  ■  lull  tense  corporate  pre  may  not  with  any 
precision  speculate;  but,  of  ■  certainty,  the  older  au- 
thorities were  wrong  who  ascribed  thai  change  to  the 
middle    fifteenth    century.***     The    comvwmtas    of    the 

borough  is  gaining  abstractness  as  tin-  yean  <>t  the  DTtl 
Edward  draw  mar  their  end.14'1  In  th»-  reign  of  his 
successor  the  courts  are  talking  freely  of  the  bodilim-ss 
of  towns."''  The  good  citizens  <>f  Great  Yarmouth  I 
t ra v  a  health?  anger  when  the  townsmen  of  their  small,  r 
brother  "who  are  doI  of  any  community  ami  have  no 
common  seal"  pretend  to  burghal  rights.1  The  Liber 
Assisariim  has  not  a  little  to  say  of  the  physical  sub- 
stantiality of  a  city  which  is  not  its  citizens.14  Richard 
II  takes  compassion  upon  the  good  men  of  Basingstoke 
who  have  sutl tied  the  scourge  of  fire,  and  incorporation 

is  the  form  his  pity  takes  -with  a  common  seal  thereto 
annexed.150  Nor,  assuredly,  may  we  belittle  in  this  con- 
text the  meaning  of  bis  extension  to  cities  and  to  boroughs 

of  the  provisions  of  Mortmain.1 ''  It  is  made  thereby  very 
clear  that  the  nature  of  COrporatenesS  IS  becoming  known 
to  men.  The  citizens  of  Plymouth  were  not  less  clear 
about    its    nature    when    they    petitioned    Parliament    that 

for  the  purchase  of  free  tenements  for  life  they  might 

become    "//    COrpt    COTpOTOi ,ia         The    union    of    the    two 
mi    \     Merewether  and   Stephens  c l i * l -    Cf.   i   Grc    •  Odd  Ah  r 

chttiif,    !•■'!    ff. 

I4f  2  Cross,  op.  ril..   18. 

i«  i  //,;,/..  M, 

i4i  \  OIom  Roto,  i!)  Bdw.  Tl,  1"  6L 
ho  Liber  A^^.  S3,  100,  82L 
i  ■•■■  B  OharUr  Knit*  881 
i  j  Stubbf,  OomtU.  Hist,,  <;  <d.,  BOOL 
B  Bet,  Pari  888L 


19(>      HISTORY    OF   THE    CORPORATION 

Droghcdas    into    a    single   county  —  I    corporate    county 

the  record  tril]  nakc  it  l,t  —  suggests  that  ire  have 
patted  to  the  language  of  a  new  jurisprudence.  We  have 
synthesized  nun  into  the  abstraction  of  a  Dew  being. 
Wliat  has  happened  ii  lest  the  acquisition  of  new  rights 
than  the  formulation  of  a  meant  whereby  collective  ac- 
tion may  be  taken  bv  that  which  is  not  tin-  body  of 
citizens  even  while  it  is  still  the  citizen  body.1*1  The  later 
use  <>f  tin-  corporate  term  to  mean  that  oligarchic  body 
which  will  with  such  difficulty  be  reformed  in  the  nine- 
teenth  century,  is  evidence  of  how  easily  the  towns  ab- 
Borbed  the  possibilities  laid  open  by  representative  ac- 
tion. lM 

Tlir  point  to  which  such  evidence  must  drive  us  Is  surely 
the  admission  that  by  the  time  of  Edward  III  the 
concept  of  burghality  lias  undergone  a  change.  Not, 
indeed,  that  the  meaning  of  that  change  has  been  grasped 
in  any  sense  that  is  full  and  complete.  If  the  courts  can- 
not separate  John  de  Denton  from  the  Mayor  of  New- 
castle, the  ghost  of  anthropomorphism  can  still  trouble 
the  joys  of  corporate  life-J5c  Yet  within  less  than  a  cen- 
tury the  meaning  of  such  confusion  is  clearly  un- 
derstood.1 7  But  the  attribution  of  property  to  a 
corporation  as  distinct  from  its  members  is  already  made 
at  the  earlier  time;108  and  the  great  Forteseue  will  be  will- 
ing to  protect  the  corporator's  property  against  seizure 

1^3   ]  (Iross,  op,  rit.,  91,  n. 

Cf.  Ifeiewether  &  Stephens,  Hirt.  <>f  Borough$,  -V2. 

■i  May,  I'nnstit.  Hint.,  §04  ff.;  tfsJUsnd,  Tawn$Up  ami  Bor- 

•h.    i_\ 

i5«  Y.  B.  17,  is  Bdw.  TTT,  7<>  (<•<!.  Pike). 

V.  B.  8  Hen.  VI,  Midi    PI  2,  84,  and  cf.  1  P.  &  M.,  2  rd.,  493. 
16"   17  Ass.  PI.  L><).     Cf,  also  Y.  B.  8  Hm.  VI,  Mich    PI  % 


HISTORY    OF    THE    CORPORATION       l'.)7 

for  the  ( l<  l»i  -  of  the  corporation.1*  The  lawyers,  moreover, 

begin  to  wander  from  tin    realm  of  fact  to  thai  in  which 
the  delights  of  fancy  u\;iy  be  given  full  rem*    The  jadget 

can  Bit  back  in  tlicir  chairs  and  Speculate  about    its   tortfl 

and  treasons,1"   while  Mr,  Justice  Choke  —  surely  with 

BOme   nicinorv   of   the  common  law   in   hi>   mind  —  will   in- 
form   us   that   it   lies   beyond   the   scope   of   c\commnni< 
tion.181     And  since  a  corporate  person  must    needs   have 
a  voice,  the  seal  will  be  given  to  it  whereby  it  may  in  do*" 

form  have  speech.191     Trespass  against   itl   property   tli- 
courts  will   not    hesitate   to   admit10     if  they   still    shrink 
somewhat  from  admitting  its  sufferance  of  certain  grave 
forms  of  wrong.111     Surely  the  "gladsome  light"  of  thi> 
jurisprudence  is  a  new   and  a  refreshing  thing. 

A  new  commerce,  moreover,  is  beginning,  and  it  ca^K 
its  shadows  across  the  pathway  of  our  history.  The 
Black  Death  and  the  Hundred  Years'  War  brought  with 
them  distress  in  their  trail.  The  social  movements  which 
are  their  consequence  are  too  vast  for  a  local  authority  to 
control,  and  from  separatism  we  pass  to  the  national  con- 
solidation which  reached  its  zenith  under  the  Tudoi  >. 
What  is  perhaps  above  all  important  is  its  resultant  em- 
phasis on  the  class  structure  of  industrial  society."  The 
emergence  of  the  capitalist  seems  to  synchronize  with  the 

i™  Y.  B    20  Urn.  VT.,  PI.   1*. 

i«o  T.    B.   21    BdW.   TV,    PI    18,    14. 

in  Ibid,,  PI.  14. 

162  Y.  B.  21    BdW.   IV,  Hit.   Pt.  0.     1  need  not   say  hOfJ  much  thi. 
analysis  owes  to  Maitland..     See  especially    I    P.  flk    Mi  -'  «<!.,   188 
and  U7H  ff. 

IS!  Y.   B.  21    Bdw.  TV,  PI.   ia 

i«<  Ibid,;  and  ef.  29  a    .  Pi.  67. 

Cf.  l  Cunningham,  Growth  <>f  BngHtk  tndwtfy,  S7r>  ff. 

i*«  Cf.    Mr.    I'nwin's    pregnant    remarks,      In 'fust  rial    ()r<j<inizatinn 
in  the  With  and  XYLlth  L'enlurus,  16-19,  b5-93. 


198       HISTORY    OF    THE    CORPORATION 

emergence  of  n  P   forms  of  liihim^  or^ani/at  ion.    Al  'ail  v 

us  l.'JDl  Kiehard  II,  irhose  reign  seems  generally  to  have 
marked  the  onset  of  a  new  I ',  wbm  granting  a  charter 

to  what  is  at  least  the  ( ommiui'itas  of  the  English  mer- 
chants in  Prussia  ;""  and  Henry  I V  was  not  .slow  to  emu- 
late the  novelties  of  his  predecessor.  The  organization 
of  foreign  merchants  in  England  will  If  encouraged^  since 
a  unit  permits  with  satisfactory  ease  of  tin  assessment  the 
kiiii^  hold  drar.",,J  The  vci'v  phrases  which  suggesi  the 
corporate  idea  begin  everywhere  to  make  their  appear- 
and Henry  VII  made  the  Englishmen  of  Pisa  a  cor- 
poration in  141)0.''"  The  great  trading  companies  which 
are  in  .some  sort  the  parents  <>f  empire  begin  to  buy  their 
charters.  Henry  VII  provided  the  Merchant  Adventurers 
with  what  protection  the  written  privilege  of  an  Eng- 
lish  kin^  might  afford;171  and  it  has  been  significantly 
pointed  out  by  Dr.  Cunningham  that  the  object  of  the 

grant  was  rather  the  encouragement  of  commercial  specu- 
lation than  the  governmental  regulation  of  commerce. 
These  companies  seem  to  arise  with  all  the  spontaneity 
that  marks  the  communalism  of  our  earliest  history. 
Their  appearance  is  very  striking,  since  the  simpler  forms 

of  such  business  organization  as  the  partnership  were  al- 
ready well  known.11  Hut  the  partnership  seems  too  nar- 
row in  its  scope  for  the  larger  ideas  of  fellowship  these 
fifteenth  century  Englishmen  have  inherited  from  their 
ancestors.  Why  they  should  have  chosen  the  corporat. 
form  of  life  is  p.  rhaps  not  wholly  clear.     But  the  step  is 

167  7  Rymer,  Fa  <>>  m.  89a 
1««  //-.v..  B60,  164, 

•  i  Cunningham,  op.  oil.,  490-22. 
i-    i-'  Rymer,  Fatdt  /•".  W 
37i  i  Cunningham,  in;, 
i"-  Ashley,  Eeomcmie  History,  pt  ii.  in. 


HISTORY    OF    THE    CORPORATION        LOT 

taken,  and  from  the  time  <>!'  Kli/aheth  it   i>  in  them   rati 

than   in   the   municipal   corporation    thai    tin-   historian 
of    corporate    theory    must    he    interested*      Moreover, 
after  1515  they  could  not  escape  from  the  king's  hands 
even  it'  they  remained  a  voluntary  society;  the  ministers 
of   Henry   VIII    recked  but    little  of  forma]   matters. 
The  companies,  for  the  most   part,  deal  with  a  foreign 
trade  in  their  earlier  history.    They  vranl  privileges  be 
eau.se  they  are  journeying  into  far,  strange  lands;  and  it 
is  Burely  one  of  the  bappiesi  thoughts  of  Philip  and  Mary 
(whose  grandparents  had  tasted  the  rich  fruits  of  mari- 
time adventure)   which  Led  them  to  incorporate  a  com 
pany  of  which  the  great  Sebastian  Cabot  was  the  <*>> 

1  74 

ernor. 

\\Y  may  not  surely  deny  thai  this  COrporateness  i>  in- 
herited from  burgha]  organization.  These  merchants 
have  learned  the  value  of  their  fellowships  from  the  gilds 
of  the  towns;  and  not  seldom  they  strive,  in  all  the  bitter- 
ness of  a  novel  rivalry,  with  the  older  crafts  and  mysteries 
of  the  towns.1.  It  is  perhaps  from  the  analogy  of  the 
medieval  towns  that  we  shall  find  the  connection.17'  Its 
whole  point  lies  in  the  organization  of  a  group  of  men 
into  something  like  an  unity:  and  once  the  charters  are 
forthcoming,  the  incidents  of  corporateness  are  not  want- 
ing.   The  sense  of  exclusiveness  must  have  been  fostered 

by   the   stress   of   the   keen    foreign    competition    they    had 

from  the  outset  to  face.     Englishmen  have  had  pride  in 

their   isolation,  and   they  did    not    find    it    difficult    to   coin- 

Bec  6   H<ii.  YTTI.  c.  ,2(l.     This  since     inn  of  ictS  MODS  to  Int- 
ended in  Edward  Sixth's  reign. 

i7i  •_>  ii.iktnyt.  Von,,,,,*  (Maclehose  ed),  •><>f. 

iT«  Lambert,  Two  Thousand  Vtmn  <-/"  Oiid  !.'»(•.   168;  for  Hull; 

Latimer,  Hint.  <>{  tin     Mi  reliant    I'tnturen   of   I  ',  'Jo*. 

17<)     \   hi,  y,   op,   rit.,   pt   ii,   '-'17. 


800      BISTORY    OF   THE    CORPORATION 

bilM    against     alien     rival  \\.      can     imagine     that     a 

medieval  governmeni  which  understood  the  difficuit it*s  of 

evolving  a  foreign  policy  would  welcome  the  spontaneous 

development  of  groups  of  men  who  for  th«   royal  proti 
tion  ire  term  incorporation  would  call  ■  new  world  into 
being.171 

These  companies  are,  at  the  outlet,  at  least,  devoted 
for  the  most  part  to  external  trade;  so  John  Cabot  and 
lii^  ions,  in  return  for  no  more  than  an  exclusive  right  to 
traffic  (whereof  the  fifth  pari   of  the  capita]  gain  will 

fill    the   coffers   <»l    the   avaricious   Tudor),   will    engage    to 

plant  the  English  flags  in  lands  "which  have  hitherto  been 
unknown  to  Christians." ir  That  Master  Bore  of  Lon- 
don whose  "goodly  Btature  and  great  courage91  perhaps 

inclined   him   to   the  ".study   of  Cosmography"   planned    his 

establishment  of  the  Newfoundland  fisheries  in  return  for 

a  similar  monopoly.1"  But  gradually  the  expedient  be- 
comes of  obvioUfl  advantage  in  internal  commerce.      When 

burghal  monopolv  of  trade  begins  to  break  down,  it  be- 
came clear  that  the  crafts  were  no  longer  able  to  cope 
with   tin    scale  of   national  development*      It   was  obvious 

that    the   essential   need   was   tit  her   a    fully   developed 

national  control  or  no  control  at  all.  And  it  is  perhaps 
singularly  fortunate  that  this  industrial  expansion  should 

have  synchronized  with  the  accession  of  so  able  and  vig- 
orous a  sovereign  as  Elizabeth.181 

The    patents   of   monopoly   which    she   granted    with   so 

royal  a  hand  were  a  definite  and  systematic  attempt  after 

industrial   unity.      They   continued   in   a    new    fashion   the 

m  i  anmlngham,  op.  rit.,  m-20. 

178  2  Cunningham,  <>/>.  rit.,  214. 
i-*'    I_»    Hymrr,    /'  <  <h  m .   BS& 

>8o  ]  Cunningham,  <</'.  rit.,  505. 
i8i  2  Ibid    -->. 


HISTORY    OF    THE    CORPORATION       901 

regulation   which   had   made   the  crown   the  center  of   th< 

economic  system    Granted  at  first   rather  to  individuals 

than   to   groups   ol   DM  n,   the  opportunities   <>f    profit    they 

opened  uj>  soon  ami   naturally   Attracted   the  courti< 

into     the    race     for    wealth.      So     that     if     Kli/alx  t  h     was 

somewhat  hard  in  her  dealings  with  inventors,1""  .she  was 
apparently  iroman  enough  to  make  the  road  thai  led  to 
lur  Favorites'  hearts  a  gilded  one.  Little  by  Little  the 
recipient  of  her  bounty  becomet  a  group  rather  than  an 

individual,   until,    under    the    Stuarts,    the   collective    nion 

opoly  is  the  more  typical  form.1'  In  the  mining 
monopoly  of  Master  Thurland  of  the  Savoy,  Pembroke 

and  Cecil  and  Leicesfc  r  are  all  most  willing  to  shall  . 
Corporations,  indeed,  we  shall  hesitate  to  call  groups 
that  are  often  no  more  than  amorphous  partnership-. 
But  that  form  of  organization  is  far  from  wanting,  and 
its  meaning  is  very  clearly  conceived.  When  Sir  Thomas 
Smith,  who  toyed  with  chemistry  in  the  intervals,  douht- 
h  ss,  of  his  political  and  legal  .studies,  claimed  to  have 
found  at  length  the  philosopher's  stone,  a  Corporation 
was  founded  to  do  him  honor  for  so  signal  a  triumph.1'" 
Drak«  seems  fully  to  have  realized  the  meaning  of  such 
organi/at  ion;181    and   ire   may   he   sure  that    the   gnat    Sir 

Humphrey  Gilbert  when  he  incorporated  "The  Colleagues 

of  the  Fellowship  for  the  Discovery  <>f  the  Northwest 
Passage**181  was  by  do  means  sacrificing  the  practical  to 

his    sense    of    st  ateliness.      The    lisl    of    monopolists    which 

1*2    Price,  EngUik  Put'  nti  of  Monopoly,  Hi. 
i«  //,,-,/.,   ;*5. 

IM   Ihid.,  50. 

flfoeitfy  of  the  New  Art.    See  tin-  imaging  account  of  its 

ndventun-s  in  Strypr,  Lift    of  Sir  T.  Smith,   100  IT. 

s.  p.  Don.  Elk,  XCV,  Sa 
is?  s.  P.  Data  Bna,  CLV,  90, 


jnj       HISTORY    ()!     THE    (  ORPOR  \TM>\ 

Sir  Robert  Cecil  communicated  t<»  the  Souse  of  Commom 

in     1601     contained    not     ;i     ft  u     groups    of    nun.  That 

"Fellowship  <>i  English  Mcrclianti  for  the  Discover]  «»f 
\ .  \s  Trades"  wherein,  mayhap,  the  IfuscoYj  Company 
concealed  Its  commercial  cousinship  with  barbarians  in 
dignified  phrasing,1*9  shows  u>  in  whai  direction  men's 
minds  an-  tending.  The  relation,  in  fact,  between  mon- 
opolies .tinl  joint  stock  enterprise  is  the  dominant  note 
of  tin*  time.  The  resuscitation  of  local  companies  i> 
giving  nt  u  vigor  to  the  collective  efforts  of  nun.  It  is 
suggestive  of  the  recognition  <>f  value  in  such  effort  that 
a  definite  encouragement  of  thrir  creation  should  m«  •  t 
with  the  approval  <>f  the  crown.1 

All  thii  we  take  to  mean  that  the  significance  of  cor- 
porateness  has  been  firmly  grasped.  And  when  men  tell 
n>  of  the  causes  of  their  desire  for  it,  they  speak  with  a 
definite  perception  of  its  character  Par  different  from  the 

mistv  conceptions  of  medieval  time.  The  East  India 
Company  becomes  "a  bodv  corporate  and  politic"  be- 
cause Only  in  such   fashion  can   it   cope  with   problem^  so 

vast  as  that  of  an  eastern  civilization.1  The  immor- 
tality of  a  corporation  was  what  tickled  the  palates  of 
the  Miners  Royal.194  Unity  of  assent  and  need  of  better 
government  led  Henry  VIII  to  give  the  merchants  of  An- 
dalusia the  rights  a  moment  of  friendship  with  the  em- 
Prlce,  op.  ri/.,  its  ff. 

i»ft  8  Il.ikluyt,  op.  rif.,  *:}. 
190   I'liuin,  <>fi.  rif..    164. 

i9»  Lambert,  op.  eU.,  386,  278;  nifi;  HIbbert,  GUdt,  77.  The  Statute 
of  Artificers  had,  of  coarse,  much  tfi«-  tame  purpose. 

Winchester,  Id  Lambert,  "/'•  ell  .  B82j  and  cf.  9  Caanmgham, 

Sp.  rif..  :\6. 

103  Tin-  charter  of  WOO  In  Prothero,  flflafalei  onrf  Constitutional 

Dor  unit  nt*,    IIs    fT. 

.  s„n;;/  (ed  Strype),  MO. 


HISTORY    OF    THE    CORPORATION       2< 

peror  led   the  latter   to  confirm.        Thomas  Thurland, 
whom   much   mining  had   made   somewhat    impoverished, 
turned  his  holdings  into  a  company  in  admirable  antici 
patidii  of  modern  methods.         When  in   1606  the  ''fret 
traders'1  of  the  time  soughl  means  of  hindering  this  opr- 
porate  growth,  the  merchants  v% i  1  < »  favored  it  were  ?ery 
n  ady  with  their  answer.     They  insisted  that  only  with 
such  an  organisation  could  they  hav<    the  adequate  pro 
tection  of  the  law.    The  trade  needed  regulation,  and  its 
corporate  character  provided  the  simples!  means  to  thai 
end.     Competition,  moreover,  would  prevent   the  mainte- 
nance of  quality  and  would  be  subversive  of  all  good  order. 
Tin-    Privy   Council    accepted    their   statement    and    the 
charter  was   renewed,11      The  arguments  seem  to  come 

with  a  familiar  note  to  a  generation  not   less  puzzled  by  a 

similar  question.  Bui  even  more  striking,  perhaps,  were 
the  words  of  one  who  mirrored  in  himself  the  resplendent 

qualities  of  thai  spacious  time.  When  the  House  of 
Common^,  on  the  20th  of  November,  1601,  debated  the 
merits  of  monopolies  as  an  economic  system,  there  were 
not  a  few  who  strove  to  distinguish  between  grants  made 
to   pei-sons   and   grants   made   to    the   corporate   groups   of 

men.    Francis  Bacon,  al  any  rate,  saw  clearly  the  Ulogic 

of  such  distinction.    "If  her  Majesty,"  he  said,      "make 

patent  or  a  monopoly  into  any  of  her  servants,  that  ire 
must  go  and  cry  out  againsl  :  but  if  .she  granl  it  to  a 
number  of  burgesses,  or  a  corporation,  that  musl  stand, 
and  that,  forsooth,  is  no  monopoly."     The  history  of  half 

a  thousand  years  is  in  that  significant  equation. 

Lttttrt  and  Paptrt  of  // ■  ».  17//.  v..  8640. 
Price,  op.  <;?..  50. 

i»7  s.   l\  I). m,i.  .J..,-.,  I,  MI.  S9,  <  1 

i»*    I'rotluro,  .7*.  >,'..   1  U.     (  1.  ,,1m»  p.   115. 


204      HISTORY   or   Tin-:   mmM)u.\Tin\ 


\  i 


If  it   was   Hiu.s  .1  new   world   tliat    had  developed,  1 1 " 

of  the  < > I <  1  still  linger  about  its  confin(  i.     If  the  corpora 
tion  becomes  u  full v  developed  legal  person,  it   is  still 
dependent    upon   rojal   caprice.     The  kin/^  concedes   it 
prnrilegea;  it  is  from  his  bounty  thai  it  takei  iti  origin* 
In  the  laai  v»  an  of  Edward  III  two  judgea  did  not  shrink 

from  holding  that  only  the  crown  could  •  net  a  corpora- 
tion.1™     When     the    citizens    of     Norwich     pleaded     their 

crimes  to  Sir  John  Fortescue,  their  liberties  cU  alto  rt 

basso  wire  seized  into  the  royal  hand-.        Madox  has 

pointed  out*"1  that  in  the  Tudor  age  gildation  and  in- 
corporation are  used  transferable  bj  the  statutes;  but 
from  the  Conquest  the  lawfulness  of  ^ilds  depended  upon 

roval  permission.  We  cannot  avoid  the  conclusion  that 
the  power  to  incorporate  is  no  more  than  part  of  the  gen- 
eral prerogative  by  which  vast  powers  of  regulation  in- 
hered in  the  kin^.  The  chartered  companies  demanded 
their  charters  because  without  them  life  would  have  been 
h  is  than  tolerable.  While  their  members  m.iv  have  bad  a 
common   law   right   to   pass   freely   without   the   realm   for 

anv  cause,      yet  the  kin£  could  prohibit  anv  emigration 

on  grounds  of  public  safety  ;"'  '  and  the  wisdom  of  Richard 
II  chose  to  ordain,  as  the  wisdom  of  James  I  chose 
to  repeal,  that  none  .should  pass  out  of  the  king- 
dom without  roval  license,*01  while  it  was  understood  — 
men  soothe  themselves  a  little  easily  with  phrases — -that 

is©  V.  B.  10  Edw,  TTI,  f.  I,  per  Candid)  ind  Kntat,  .u. 

200  Mad<»x,  Firm*  /o/r:/»".  291. 

201    I !,{,{..    | 

202  FiUherbert,  N$m  Natwn  Br§vhm,  f.  w. 

203  Dyer,   165. 

204  5  it.  ii,  repealed  by  i  Jac.  I,  Ch.  1,  §  n 


HISTORY    OP    THE    CORPORATION       80fi 

his  power  prai  not  to  l><-  aJbuaed  in  the  depreaaion  <>f  com- 
i,),  I,-, .  Who  i^  there  arho  can  call  the  crown  to  anawe 
Your  medieval  merchant  baa  wlBcienl  expert  nee  ol  the 
ills  In  might  not  remedy.  He  will  prefer  to  porchaae  ln> 
charter  —  the  equivalenl  of  a  continoom  paaaport — and 
avoid  the  coatlineaa  «>f  I»gal  conlrovt  ray.    The  Baal  India 

Company,  in  a  later  reign,  WBM  to  liavc  souk-  hard  experi- 
ence of  what  thai  purchaae  meant.1 

Nor  whs  this  theory  of  coneeaaion  in  any  way  dimin 
iahed  by  inch  powera  as  those  poaaeaaed  by  pope  and 
palatine.  If  the  popes  did  §et  up  their  religious  corpora- 
tions/"7 the  marital  difficulties  of  Henry  VIII  soon  drew 
a  clear  distinction  between  light  and  courtesy.  The 
power   ol    the    Bishop   of   Durham'""      was    clearly    derived 

from  the  jura  regalia  bestowed  on  him  by  the  Conqueror 
in  return  for  an  inconvenient  proximity  to  Scotch  ma- 
rauders. Even  more  striking  was  the  Elizabethan  dele- 
gation of  this  power  to  any  person  or  persons  who  should 
erect  a  hospital,**  whereof  Coke  significantly  remarked 
that  "these  words  do  extend  to  anybody  politic  or  cor- 
porate" J1°  —  an  interpretation  to  which  an  earlier  Tudor 
had  already  given  utterance."11  The  corporation  by  pre- 
scription—  which  seems  to  originate  in  this  time,  and 
thereby  to  prove  the  general  acceptance  of  this  conces- 
sion-theory"1'  —  takes    for    granted    the   written    fact    of 

205  Hargrave,  Law  Tracts,  91-92    (Hale,   De   Portihus   .Van.*,   pi 
2.   VIII). 

•-•"«  M   Macaulay,  History  of  England   (  Fvervinan's  ed.),  Ml 

207  y.  B.  iv  Hen,  VIII,  2.  *»>»  aj  Rlfc.  n,.  a 

■.--   (irant.  Corporations,  11.  210  |  Co.   [aft  722. 

211   U   Hen.   VIII,  c.  7.     Cf.  Dyer,  88  b.     The   reaction   from  this 
vit*w  does  mil  s. •(•!!)  to  COOK  until  0  ( SeO.  II.  «'.  B8,     Cf.  9  If.  <^  ™     B80. 

Y.  B.  2  Hen.  vn,  IE    Cf.  Anon,  dofft  5M,  and  JenaJaa  9, 

Ilurvry,  2  ('.   M.  ft  It.  BB8 ;   10  Coke  U.p.  27. 


•_'<>.;       HISTORY    OF    THE    (  ORPORATION 

royal  approval.    Thai  irhich  <'\ists  by  implication  rarely 

<lo«s  rx>  more  than  define  with  firmneai  what  hitherto  hai 
been   raguelj    deemed   the   royal   will.        And   since  the 

Courts  hold  firmly  that,  if  tin  v  ezifl  without  roval  au- 
thority, attack  on  i !  corporate  privilege!  ii  ■  valuable 
procedural  plea,*14  it  is  rarely  plain  thai  the  early  pre- 
rogative of  the  crown  luffers  no  derogation.  Hie  legal 
construction  of  charters  seems  to  make  evident  the  same 
tendency  of  thought.  The  charter,  as  Coke  t.-iu  us,-10 
is  no  leai  effective  than  an  act  of  Parliament.    It  may  not 

be  int.  rpreted  in  a  manner  other  than  that   most  favorable 

to   the  crown.*1      It    limits   by   it>   very   circumstance!. 

These.  Burely.  are  the  thoughts  <>f  men  who  deal  with  the 

ghtfl  of  property.    They  are  the  thoughts  of  men  who 

do  not  dream  of  questioning  ■  royal  prerogative  which 

lies  at  the  basis  of  the  state. 

But  it  is  perhaps  the  extent  of  regulation  and  of  con- 
fiscation which  marks  most  clearly  the  character  of  this 
attitude  Everyone  knows  of  that  famous  Ipswich  pro- 
lure  when  the  right  to  form  a  merchant-gild  was 
granted  to  its  bur<4' —  <  s.-1"  When  the  merchant-gild 
paasei  from  our  view  and  the  crafts  take  their  place,  we 
find  that  the  crown  has  supplanted  the  earlier  autonomy 
by    the   conference   of   municipal    regulation."19      The  his- 

•u  v.  B.  12  Hen.  VII,  2f>. 

m  An..n.  Dyer,  i<h>.    Cf.  PI.  <l  W.  6ia 

V.  B.  30  Edw.  IV.  2\  Ibid.  22  Bdw.  IV.  S4;  12  Hen.  VII,  27. 
cf.  Broke,    for.  <'>>rf,..  No, 

-  Coke  Rep.  B.    ('(.  Hale,  Jurisdiction  >>f  Lords  House  (ed. 
1 1  irgrave),  20  <r.;   Plowden  21 1. 

Prlddk  7-.  Napper,  ii  Coke  Rep.  8  (1612)i  Knlghfi  Cusr,  5 
Coke  Rep.  M  (1686) j  Willi. in  v.  Berkley,  Plowden  248  (IMS). 
-j  (;■         /*.  rit.,  in  tr. 
2»»  IS  Hen.  vi,  Ch.  6. 


HISTORY    OF    THE    CORPORATION       8OT 

tory  of  their  relations  mav  well  surest  tin-  thought  that 
town  and  craft  struggled  mightily  together  in  an  s 
when  civil  uar  prevented  too  dose  an  attention  to  their 
rivalries.  Bui  irith  the  advenl  of  the  Tudor,  th<i  dm 
lignificanl  innovation.  The  king  baa  heard  irith  displi 
ure  that  the  "companies  corporate*1  have  used  their  rule 
and  governance  to  make  "among  themselves  many  un- 
lawful and  unreasonable  ordinances  .    .    .  for  their  own 

lingular   profit    and    to    the   Common    hurt    and   damage   of 

the  people."  It.  is  therefore  rendered  unlawful  for  any 
fellowship  to  make  its  by-laws  without  the  approval  of 
certain  great  judicial  functionaries.  The  act  was  no 
mere  threat.  Discontented  members  could  drag  their 
officers  before  the  court;"1  and  many  <>f  the  companies 
thought  it  valorous  to  be  discreet  and  Beek  the  ratification 
of  what  rules  they  had  already.**1  Nor  is  it  unimportant 
in  this  connection  to  note  that  the  great  Statute  of  Arti- 
ficers took  from  the  crafts  their  control  over  their  ser- 
vants.2'3     No   man,  surely,  can    have  mistaken   the   impli- 

cations  of  this  policy.     Were  he  so  blind  the  dissolution 

of  monasteries  and  chantries  would  have  stricken  him  with 
sight. 

It  is  the  strident  voice  of  Coke  which  raps  out   an  eh  gy 

on  this  early  history.         "A  corporation  aggregate  <>f 

many,"  he  said,  "is  invisible,  immortal,  and  rests  only  in 
intendment  and  Consideration  of  the  law.*'      From  treason 

and  outlaw  and  excommunication  he  deemed  its  nature 
to  exclude  it.     Loyalty  was  a  virtue  of  the  mind  to  which 

l'»   II. n.  VII,  (h.  7. 

'    Williams   Ilistorn   <>f   ///,     /\,ioe/.  rV   CompUUf,    1  *,    16. 

222  ftfflbonrne,  Hirt.  of  Vintnerf  Oompamjf,  89. 

2=ri  |  Kliz.  ch.  4,  §S  t,  11.  11.  _'s. 

I    \   hl.y.  <./».   rff.,    1 
--     The  CaM  of  Sutton's  Hospital,  Hi  Coke  Rep,  1   (1613), 


•jos       HISTORY    OF    THE    CORPORATION 

it  could  make  no  pretension*  It  exists  hut  in  ab$tractot 
so  that  it  Lief  readj  to  the  king9!  bands.    They  are  pn 

oitl    RTOrdSf     'The  King  giveth  and  the  King  takcth  away" 

ii  do  inapt  lummarj  of  their  purport,  though  ire  who 

know    the   history    of  their    future    may    well    shrink    from 

tin  addition  of  the  Pfonted  blessing.  Two  oentorii  i  irere 
to  elapse  before  the  charge  of  high  treason  gave  Stuart 
Kvd  the  Leisure  which  he  turned  to  lerrice  of  corporate 
realism.         Serentj  yean  later   England  discovered  a 

road    more    fitted    to    corporate    trawl.  Within    forty 

yearSj  tin-  greatest  of  English  historians  wrote  Large  the 
epitaph  of  corporate  fictions.     The  new  theory  of  the 

state    his    words    are   making   may    yet    prove    his    truest 

memorial.*** 

The    second    volume    of    Kyd*l    work    (17!»t)     i-     etnally    dated 
from  the  Tower. 

Companies'  Act,  20  &  96  Viet  Ch.  89. 

22»  Maitland's  translation  of,  and  introduction  to,  Gierke  | 
published  in  1900.  Cf.  Saleillcs'  impressive  remarks  in  j;j  L.  nutirt. 
Rev.  189.  I  ought  to  say  that  I  have  not  disCOMed  the  relation  of 
fictions  to  the  concession  theory  because  I  am  convinced  that  in 
order  to  do  so  at  all  adequately  it  is  necessary  to  consider  the  history 
of  the  corporation  to  the  end  of  the  seventeenth  century.  I  hope  to 
deal  with  this  subject  in  a  later  paper.  Sir  F.  Pollock's  essay  in  the 
Gierke  Feittchrift  is,  of  course,  our  main  authority  on  this  head. 


THE   THEORY   OF    POPULAB 
SOVEREIGNTY 


Ai.i'Ais    DM   To<  ur  rvi  1.1  i:    has    P/isely    insisted    upon    the 

natural  tendency  of  nun  to  confound  institution*  that 
are  necessary  with  institutions  to  which  they  have  grown 
accustomed.1  It  is  a  truth  more  general  in  its  application 
than  he  perhaps  imagined.  Certainly  the  student  of  po- 
litical and  legal  ideas  will  in  each  age  he  compelled  to 

examine  theories  which  are  called  essential  even  win  n  their 
original  substance  has,  under  pressure  of  new  cir- 
cumstance, passed  into  some  allotropic  form.  Anyone, 
for  instance,  who  analyses  the  modern  theory  of  consider- 
ation will  be  convinced  that,  while  judges  do  homage  to 
an  ancient  content,  they  do  not  hesitate  to  invest  it  with 
new  meaning.  The  social  contract  is  no  longer  in  high 
place;  but  those  who  bow  the  knee  to  the  fashionable  hy- 
pothesis of  social  solidarity  balf-consciously  offers  it  its 
old-time  worship.1 

Of  the  general  theory  of  sovereignty  a  similar  truth 
may  be  asserted.  It  has  fallen  from  its  high  estate.  Dis- 
tinguished lawyers  have  emphasized  the  unsatisfactory 
character   of   that    bare   statement    we   associate,   perhaps 

urongly,  with  the  great    name  of  Austin.3     When   we  e\- 

*  Reprinted  from  the  MeMjpmi  Ems  Red        Vol  XVII.  No.  3. 

i  Souvnirs  ft? Alexis  de   Toc<jueville,  pp.   Ill   2. 

2  i  owe  this  coi)c»|»tion  to  my  friend  Dees  round. 

8  Cl.   Prul.    Dewey   in   the   PoJttfaflJ  >Vo/io    (Juarttrh/    for    1893. 

200 


210  POPULAB    SOVEREIGNTY 

amine  the  historic  perspective  of  sovereignty,  it  becomes 
sufficiently  obvious  tlmt  its  association  with  the  modern 
state  is  no  more  than  the  expression  of  b  particular  en- 
vironment   which    is   already    pa88ing  aua\.'      Sovereignty) 

after  all,  is  no  more  than  the  name  we  i^ i \ «  to  ■  certain 
special  will  thai  can  counl  upon  anwonted  strength  for 
its  purposes.  There  is  nothing  sacred  or  mysterious 
about  it  ;  and,  it  its  sense  is  to  be  at  all  meaning,  it  can 
cure  obedience  only  within  limits.  We  cannot,  indeed, 
with  any  certainty  predid  or  define  them,  though  PTC  can 
indicate  political  unwisdom  deep  enough  l<>  traverse  their 
boundaries.  In  the  modern  democratic  community,  it  has 
Income  customary   to  associate  thai  sovereignty  with  the 

people  as  a  whole.  The  theorist  insists  that  onlv  the 
>tate  the    people,    mi    he   will    Bay,'    viewed    as   a   political 

unit         can    exercise    Supreme    power.      The    conception    is 

not  new;  nor  is  it,  bo  far  as  rigid  accuracy  is  concerned, 

more  useful  than  when  it  was  first  suggested.  For  su- 
preme power  in  any  full  sense,  or  as  more  than  a  merely 
transient  thing,  it  is  clear  enough  no  stale  possesses.  Ir- 
responsibility is  politically  non-existent ,  for  the  simple 
reason  that  our  acts  entail  consequences.  Policy  is  em- 
harked  upon  at  our  peril;  and  if  the  courts  use  noble 
words  about  an  Infallible  crown  or  a  state  that  refuse 
responsibility,  there  are  other  means  of  reversing  their 
judgments.  It  was  to  a  sovereign  parliament  that  the 
Declaration  of  Independence  was  issued;  and  the  Dred 

Scott    decision   (lid    not    survive  the  Civil    War   it    in   part 

entailed. 

Nor   is   this   all.      A   stale   must,  as   a  general    rule,  act 

by  agents  and  ministers  to  whom  the  exercise  of  power 

■♦  cf.  La  !i.    / iitlmrif  1/  in  n>>   Modern  stn/r.  Chapter  I. 
I    1 1 e  in.  Elements  >>•    Droll  Constitutional  ('i  ed.),  }>.  1. 


POPULAB    SOVEREIGNTY  211 

i>  entrusted.    The  power  so  confided  may,  m  in  Ameri 
be  limited)  or  plenary,  as  in  Great  Britain.   But  in  neither 

cas«     u    it    in   actual    fact    more    than    a    permission    to    j"i 

form  Midi  acts  a^  are  likely  to  secure  public  approval. 
Nor  does  the  issue  of  legality  at  all  marly  concern  us. 
The  judiciary  looks  not  to  the  inherent  nature  of  acts 
much  as  to  their  Bource;  and  it  may  srell  approve  irhat  is 
condemned  by  the  common  opinion  of  nun.  That  i^  im- 
portant only  in  so  far  afl  it  Bets  in  motion  sanctions  which 
well  may  overawe  the  majority  into  silence.  It  [fl  not 
evidence    of    moral    judgment,    though    the    character    in 

which  it  is  clothed  may  well  arrest  the  impulse  to  resist- 
ance. But  it  is  not  without  importance  that  the  experi- 
ence of  mankind  has,  at  ev<  rv  period  of  public  excitement, 
denied  the  equation  of  law  with  morals. 

This  theory  of  popular  sovereignty  has  had  amazing 
influence;  nor  should  the  novelty  of  the  democratic  state 
blind  us  to  its  antiquity.  "It  i>  a  distinctive  trait  of 
medieval  doctrines,*1  says  Gierke,6  "that  within  every  hu- 
man group  it  decisively  recognizes  an  aboriginal  and  ac- 
tive right  of  the  group  taken  as  a  whole."'  There  i>  a 
sense,  indeed,  in  which  the  theory  may  be  said  to  lie  coeval 
with    the   very    birth   of   political   doctrine;   though    it    w  as 

not  until  the  middle  ages  that  Its  full  significance  began 
in  any  adequate  fashion  to  be  perceived.  Certainly  no 
reader  of  Aquinas1    or   Marsiglio1   can  complain  of  the 

thoroughness  with  which  the  implications  of  popular  con- 
trol irere,  at  Least  in  theory,  demonstrated;  but  it  w as 
not  until  the  Reformat  ion  provided  some  signal  instances 
of  successful  rebellion  that   it  became  a  irorking-part  of 

-•    I'nlitiml   Tluoriti  Of  H>>    MidMt      /•">    <"l     M  lit  1  mil  ),   p, 

i  fUmmm*  ih>ni,,,,..  \\    \.  ,,.  90.  ,    1    1   a.  1. 

a   M  it   igllo,   l>>  /'<  MOT    /'■('  fa      I.  (  li    B    I  I 


219  POPULAB    SOVEREIGNTY 

tli*-   theory   of   the  st.it  Kv.n    then    it    Was   lint    partially 

operative;  for  it  in  iin\ it atiir  result  of  the  Counter- 

Reformation  thai  bureaucratic  absolutism  should,  in  gen- 
eral, extend  its  triumphs  to  the  secular  sphere*  Nor  is 
England  a   complete  exception   to   the   rale.     .John    Ial- 

burne's    eager    gestures    did    not     make    effective    he.ulu  |  v 

against  the  itern  disapproval  of  Cromwell  and  [reton;1 
and  the  parliamentary  system  which  the  Revolution  of 
Hiss  made  permanent  was  but  partially,  at  best,  an  ftp 
plication  of  national  sovereign  power.  Neither  the  House 
of  Commons  nor  the  electorate  could  claim  in  any  real 
sense  to  be  representative  of  the  people  at  large.  Catho- 
lic and  Dissenter  alike  still  groaned,  like  Lambard'i  jus- 
tice, under  stacks  of  burdensome  statutes.  The  real 
impetus  to  a  more  direct  expression  of  popular  will  comes 

from  French  speculation  in  the  eighteenth  century,  on 
the  one  hand,  and  from  the  American  Revolution  on  the 

other. 

It    is  hardly  worth   while   to   examine  in   curious   detail 

whether  the  appeal   to  more  liberal  doctrine  meant   ex- 

tly    what    it    said.      The    BCeptical    mighl    urge    that    the 

irly    Federalists   were   prone   to   emphasize    rather   the 

dancers   of  democracy    than    its   merits;   and    the   frreatest 

of  them.  Hamilton,  seems,  in  the  just  perspective  of  a 

century,  to  take  his  Btand  by  Burke  as  an  apostle  of  gen- 
erous conservatism.  Montesquieu  and  Voltaire  wen 
subtle  dissolvers  of  a  despotic  system;  but  neither  em- 
braced with  any  ardour  the  prospect  <>f  s  popular  gov- 
ernment.'" The  active  BOUrce  of  innovation  is  Rousseau; 
and    the    theory    he    consecrated    for    his    disciples    in    the 

"   (  f     IV.i   .-.    I  h,    /.,:-,//.  r    \1i,v,nu  ni    (1916). 
i"  (f.  tli«-  ii  «ful  <•      i\    <>f   M.   Ann-line.      I.' hi-'    >l>    hi  >'.<//:•<  r.n'/e  \% 

<l'i|.r.    I.    ecrivaini  rraacsli  «iu  XVIIIme  ilfecle.    l'.o-is.  1904 


POPULAR    S(U  KREIGNTV  218 

Revolution  certainlj  requires  a  somewhat  mop  eritn  .1 
examination  than  it  has  received.  In  its  classical  con 
ception,  whether  in  Fran©  or  in  America,  it  is  open  to 
a  rarieti  of  interpretations \  nor  h  it  obvious  that,  for 
the  practical  purposes  of  government,  it  po*  s  th<- 
merits  of  clearness  and  utility.  Thai  i>  not  to  allege  its 
lack  of  influence.  ( m  the  contrary,  it  is  matter  of  record 
that  it  has,  again  and  again,  been  the  basis  of  popular 
action;  and  it  is  .still,  for  most,  th<-  theoretic  basis  of 
popular  government.  Certainly  it  is  undeniable  that 
irhen  Rousseau  declared  sovereignty  to  be  in  tin  people 
as  a  whole,  he  ;r;iw  birth  to  a  plethora  of  constitutions 
of  which  some,  at  ha>t,  urn-  intended  to  ^hnc  partial  sub- 
stance to  his  ideas.  Nor  <lid  the  Revolutions  of  1848 
have  a  \< tv  dissimilar  objective. 

lint,  in  the  technical  sense  of  full  administrative  ap- 
plication, it  is  seriously  questionable  irhether  the  theory 
of  Rousseau  is  in  fact  a  irorking  hypothesi  .  What  he 
emphasized  was  the  distinction  between  state  and  govern 
ment,  and  it  was  to  the  former  alone  that  he  gave  un- 
limited power.'1  It  is,  however,  obvious  that  no  system 
of  politics  is  workable  which  involves  so  frequent  an  eblci- 
tation  of  the  sovereign's  will.  The  business  of  the  modi  rn 
state  is  too  complex  to  he  conduct,  d  l>\   perpetual  ref< 

enda  ;    and,    in    actual     practice,    governments    which    can 

obtain  the  n<        ary  Bupporl  are  able  to  act  as  they  on 
occasion  deem  warranted.     Rousseau's  doctrine,  in  any 

■  -■,    will    mean    no    more    than    majority    rule.       We    shall 

not   easily  surrender  the  convenience  that   has  been  ad 

ministratively   secured   by   the   transition   from   the   imp" 

sible  medieval  system  of  unanimous  judgments.     Hut  the 
hypothesis  <>t   majority  rule  herein  implied  is  its.  if  too 

ii    77,.    flTooM  Contract.     Bk.  Ill,  Cli.   1. 


/ 


214  POPULAR    SOVEREIGNTY 

simple  to  r  the  facts.     What,  in   fact,   Rousseau's 

-\  ife  m.  liki  any  other,  dot  >  i^  to  leavi  pow<  r  in  the  bands 

of  thai  minority  which  is  able  most  effectivelj  to  manipu- 
late the  will  of  the  int-rt   in  f  tin-  population. 

It  is  dear,  in  brief,  thai  popular  sovereignty,  if  it 
means  thai  tin-  irholc  people  i-,  in  all  hut  executive  detail, 
t<  rn  itself,  is  an  impossible  fiction.     There  are,  in- 

deed, kssons  when  it  may  hare  been  operative;  at  least 
it  was  theoretically  possible  for  the  citizen-body  of  Athens 
to  make  its   -  ign   decisions   a>   ■   unity.     Hut    01 

we  turn  to  the  modern  state,  with  its  absence  of  the  nu- 
merical limits  within  which  tin  Greek  cities  irere  con- 
fined, it  i>  ol>\  ions  that,  for  tip  gi  w  nil  purpos*  -  of  daily 
life,  popular  sovereignty  i>  non-existent.  \\  V  cannot 
avoid,  thai  is  to  Bay,  the  device  of  representation.     The 

il<  <»f  our  social  life  involves  specialisation  of  function. 
Political  business  has  to  be  confined  to  a  small  group  of 
men  whose  decisions,  generally  speaking,  arc  accepted  by 
the  vast  majority.  We  still  make,  ind<  !.  Rousseau's 
distinction  between  state  and  government.  We  still,  thai 
i^  to  amy,  vaguely  realise  that  there  is  no  1  isary  co- 
incidence between  the  wills  of  each;  and,  if  tiny  conflict, 
it  is  the  former  alone  which  possi  sses  the  ultimate  power 
to  get  its  will  oh-  (iovi  rnm<  nt,  if  it  is  to  be  secun  , 

must   ^o  act  as  to  obtain  at  least   the  passive  consent  of 
the   major   portion   of   the   community.      But    so    long 
that  bonier  remains  uncrossed,  so  long,  thai  is  to  say,  as 
tip-  policy  of  government  is  normally  cious,  it  i>  pos- 

>ible  to  assert  that  whatever  is  necessary   for  compfc 

litical  effectiveness  is  no  longer  the  exclusive  and  jeal- 
ously-guarded  possession  of  the  stab 

There  is  herein  implied  ■  second  and  raguer  sense  in 

The  Social  Contract.     Bk.   III.  C  h.   18. 


POPULAR    SOVEREIGNTY  21fl 

which  the  notion  of  popular  sovereignty  has  beoom 

cepted.  Historically,  it  perhaps  g< m i  hack  to  the  tele- 
ology of  Aristotle's  Politics,  at   hast   in  the  *  Site  in  which 

it  is  given  ethical  justification.    For  its  practical  bearing, 
the    sense    insisted    upon    by    Hume    when    he    urged1 
the  paramountcv  of  public  opinion  is  a  sufficient  exprt 
sion  of  its  meaning.     No  one  frill  deny  that  any  govern- 

incnt  can,  often  enough,  secure  obedience  from  an  un- 
willing people;  but  no  one  will  deny  either  that  the  ulti- 
mate power  in  any  state  belongs  to  the  majority  and 
that  the  latter,  if  it  be  roused,  will  get  itself  obeyed.  Hut 
this  is  too  abstract  a  sense  for  any  practical  value  to  be 
attached  to  it.  For  there  is,  as  Sidgwick  pointed  out,14 
a  "fundamental  distinction  between  power  that  is  uneon- 
Bciously  possessed  —  and  therefore  cannot  be  exercised 
at  all  —  and  power  consciously  possessed."  Certainly 
deliberate  organization  is  necessary  if  opinion  is  to  flow 
into  channels  where  it  can  be  effective.  The  majority  of 
men,  moreover,  is  so  habituated  to  obedience  that,  nor- 
mally speaking,  the  sanction  of  penalties  is  hardly  nec- 
essary to  obtain  it.  In  a  democratic  state,  at  least,  it 
is  rarely  necessary  for  government  to  act  upon  the  suppo- 
sition that  disobedience  is  contingent.  Its  possibility, 
doubtless,  is  a  factor  in  restraining  the  selfish  exercise  of 
governmental  power.  But  it  is  essentially  a  reserve 
weapon  the  use  of  which   belongs   rather  to  the   r-  aim  of 

prophecy  than  of  analysis. 

lit  re,  indeed,  we  verge  upon  tbe  teleological  factor  by 

which  Aristotle  justified  the  existence  of  the  state.  Its 
object,  be  said,  is  to  secure  the  good  life;  and  popular 
sovereignty  is  therefore  in  turn   justified  by  the  argument 

ff«*yj   (World's  (  lassie  ed.)    1'.  91 
n   77,-    EUwumit  of  PoJttfef,  p.  i. 


216  POPULAB    SOVEREIGNTY 

that    government    should    DOl    |  »r«  >«  -  .  <  1    ; » i_c :  i  i  n  >  t    the    will    of 

the  fjoveriu'd.  The  cause  of  such  hesitation  ii  variously 
explained.  Most  usually  it  is  the  assumption  of  ■  cer 
tain  popular  instinct  for  right  of  which  Aristotle  himself 
nis  to  have  accepted  the  reality.1  At  the  moment,  it 
is  sufficient  to  remark  thai  the  argument  raises  more  diffi- 
cultiea  than  it  solves*  It  in  reality  asks  what  degree  of 
opposition  ought  to  deter  ••>  government  from  proceeding 
with  its  policy;  or,  more  positively,  it  asks  what  conci 
sums  should  he  made  to  a  strong  popular  desire.  \W  can 
not  answer  these  questions.  To  them,  indeed,  Royer- 
Collard  made  the  response  that  the  only  sovi  reign  i^  right 
conduct  and  that  the  action  of  government  will  move  as 
it  compels."  But,  For  most,  the  definition  of  right  con- 
duct would  appear  le  b  easy  than  he  seemed  to  make  it. 
\W  enter  here  into  the  realm  of  the  impalpable.  It  is 
sufficient  to  indicate  the  immense  difficulty  that  is  involved 
in  seeking  not  merely  the  justification,  but  even  the  very 

sources,  of   political    power. 

A  corollary  that  has  been  deduced  from  this  attitude 

is  worthy  of  some  noti-  The  authors  of  the  Federalist 

were  compelled,  of  course,  to  accept  the  dogma  whole- 
heartedly, though  it  is  interesting,  in  view  of  Hamilton's 
attitude    to    demOCraCVi    1"    note    that     thev    nowhere    at- 

tempted  any  analysis  of  its  meaning.     What,  with  them, 

it  seemed  to  imply  was  the  necessity  of  a  careful  limita- 
tion of  the  power  to  be  entrusted  to  the  various  branches 
of  government ;  and  they  were  urgent,  with  historic  prece- 
dent immediately  behind  them,  in  insisting  upon  the  re- 
rve  power  of  revolution.    c<If  the  representatives  of  the 

il  Pol  Rk.  Ill,  (h.  II,  1981  1). 

ifl   (f.    LmU,     I  tit  limit  if   in    tin     Moihrn    St.it,.   Ch.    I. 


POPULAB    SOVEREIGNTY  217 

people, "  said  H.mnlt mi,  '  "betray  their  constituent  . 
there  ia  then  no  resource  left  bul  in  the  exertion  «»f  tl 
original  right  of  sell  defence  which  i-  paramount  to  all 
positive  forma  «>i  government";  and  In-  <\<n  conceived  of 
tit*  constituent  Btates  as  an  organized  security  against 
national  usurpation.  The  American  constitution,  indeed, 
once  the  bower  <>f  judicial  review  began  to  be  exercised, 
was  perhaps  the  first  attempt  at  the  protection  of  this 
vaguely  ultimate  popular  opinion  by  something  like  «!■  <i 
nite  safeguards.  The  power  of  rebellion,  a>  the  (  i\  il  War 
was  to  show,  »>t'  course  remained;  but  it  was  postponed 
bv  an  intermediate  defence.  Yet  it  will  be  remarked  that 
the  only  distinction  between  this  view  and  that  which 
merely  emphasizes  the  ultimate  control  of  public  opinion, 
is  the  more  serious  attempt  of  the  American  constitution 
to  make  public  opinion  effective.  It  gives  it  instruments 
of  which  to  make  use;  but  it  does  not  organize  it  to  use 
them. 

A  more  subtle  interpretation  of  Rousseau's  formula 
has  been  attempted  bv  Dr.  Bosanquet.  1I<  sees  that  ulti 
mate  power  must  reside  in  the  community  as  a  whole;  but 
he  insists  thai  the  conception  is  meaningless  unless  the 
power  finds  .some  determinate  expression.  He  places 
sovereignty,  therefore,  in  the  state,  and  he  defines  the 
state  as  "the  entire  hierarchy  of  institutions  bv  which  life 
is  determined.9'  '  Sovereignty,  in  his  view,  really  belongs 
to  the  genera]  will,  to  the  acts,  that  i-  t<>  say,  of  the 
state's  best  self.  But  this,  surely,  does  no  more  than 
move  the  inquiry  back  to  a  further  Btage.  The  state 
must  find  organs  for  the  expression  of  its  selfhood;  and 
Dr.  Bosanquet  gives  us  no  criterion  by  which  to  recognize 

17  Thr    F,,l,  rali.yf.    N...    88. 

18  The  Philosophical  Tk$OTjl  of  ikt  BUUi    (2nd  edition),  p.  150, 


218  POPULAB    SOVEREIGNTY 

tin-  expression.  The  sovereignty  < > f  the  general  "ill,  in- 
deed, i-  wt  i  \  [ike  the  Mi  rtion  thai  right  and  truth  must 
prevail;  but  it  does  not  t i-Il  us  how  certainly  t<>  <  1  i -t « > \ 
the  presence  <>f  right  and  truth.  It  it,  moreover,  qui 
tionable  whether  the  identification  <>f  the  community  ai 
a  whole  with  the  state  ia  adequate*  It  is,  perhaps,  leti 
untrue  for  the  ancient  world,  by  the  views  of  which  Dr. 
Boaanquei  has  been  profoundly  influenced,  than  for  our 
own  day;  hut  a  state  winch  comprises,  i<>  take  a  single 
example,  the  Roman  Catholic  church  and  the  Secularist 
Societies  seems  almost  wilfully  to  have  taken  steps  to 
obscure  any  knowledge  of  its  purposes. 

This,  indeed,  Dr,  Bosanquet  would  deny.  "If,  for  ex- 
ample," he  writes,1''  "wc  speak  of  the  'sovereignty  of  the 
people1  in  a  sense  opposed  to  the  sovereignty  of  the  state 
—  as  if  there  were  any  Buch  thin^  as  *thc  people1  over 
and  above  the  organized  means  of  expressing  and  adjust- 
ing the  will  of  the  community  —  we  are  saying  what  is, 
strictly  speaking,  meaningless.11    It  is  difficult  to  see  why 

that    should   he  the  case.      Kvcii   if  we  admitted   the  justice 

of  regarding  the  state  as  Identical  with  .society  we  still 

should  have  no  means  of  knowing  when  an  act  was  >ov- 
<  reign.       Por   social    obligations   conflict  ;    and    unless,    for 

practical  purposes,  we  take  as  paramount  the  duty  of 
obedience  to  government,  we  have  no  rule  of  conduct  here- 
in. Nor  is  it  useful  to  accept  such  a  criterion;  for 
churches,  to  take  only  a  single  example,  refuse  to  accept 
as  final  a  governmental  decision  which,  as  they  conceive, 
violates  their  own  ethos.      The  fact  is  that  Dr.  Bosanquet 

is  so  concerned   with   the  discovery  <>f  a   unity   inherent    in 

1 '  /'■ ,-  /    p.  '->-'. 

(  t.  my  ProbUm  of  Bowrrignty,  ('lis.  ii-\\  for  ■  full  analysis 
uf  this  question. 


POPULAR    SOVEREIGNTY  219 

the  km  da]  fabric  that  he  slurs  n\<v  id.-  presence  of  dis- 

hannoni  t   nit  v  of   purpose,  in   ■   broad    len  "i'  tj 

will  may   I  IS{  hut    the  methods  by   "Inch   1 1  ^  cmhl  it  u- 

t  M t  parts  propose  to  achieve  thai  purpose  are  not  only 
various,  but,  often  enough,  mutually  destructive.  So 
long  as  Hie  size  of  the  modern  state  renders  it  n<  rv 

to  entrust  power  to  a  small  group  of  selected  p<  rsons,  it 
is  difficult  to  see  how  controversy  can  1><  avoided  irhere 
the  acts  of  those  persons  arouse  differences  of  opinion 
that  are  fundamental.  Dr.  Bosanquet,  1 1 k «  Rousseau, 
makes  government  simply  an  instrument  for  effecting  the 
will  of  the  sovereign  state;  but  he  gives  as  no  means  ol 
knowing  when  that  will  has  received  expression. 

At  this  point  an  interpretation  emerges  which  has  all 

the  merit   of  simplicity  and   clearm  The   people,   it    is 

admitted,  cannot  directly  govern  itself;  hut  it  can  di- 
rectly delegate,  through  the  device  of  universal  suffrage, 
the    business    of    government.      The    national    assembly, 

whether  Congress  or  Parliament,  then  in  fact  becomes 
the  people,  and  it  derives  the  right  therefrom  to  ex<  rcise 
completely  sovereign  powers.     Popular  sovereignty,  thai 

i-  to  say,  implies  representative  government.  Some  in- 
stitution, or  Bet  of  institutions,  has  to  be  erected  in  which 
the  will  of  the  people  as  a  whole  may  find  expression.  The 

most  eminent   of   Rousseau's   disciples   did    not    hesitate    to 

accept   this  view.     "The  nation,"  said  the  Constitution 

of   1791, "M    "from   which   alone  all    powers   derive,   can   e\- 

ercise  them  only  by  delegation.  The  French  constitution 
is  representative ;  its  representatives  are  the  legislative 

body  and  the  King."'     The  Belgian  constitution  exprest 
a  similar  idea.     "All  powers,"  it    asserts,  "emanate  from 
the  nation:  they  are  exercised   in  the  manner  established 

.'i  <'<>nsl it.  of  /;.'/.     Tit.  II,  Art.  & 


220  POPULAB    SOVEREIGNTY 

l>\  tli.   Constitution."        Hie  lovereurnti  of  th<    Kins  in 
Pari  mux  nt  has  .1  basis  in  nowise  « 1 1 i  1  *  n nl  ;  ami  it  hat  been 

l;i\«  ii  classically  emphatic  expression  in  Burke's  insistence 
lh.it  the  private  member  ideally  represents  the  nation 
■  irhole.]     Statesmen  of  distinction]  indeed)  have  no!  b<  ii 
tated    to   affirm    thai    resistance    to    the    representative 
assembly  is  resistance  t<>  the  state  Itself.    M.  Briand,  for 
example,   based    his   opposition    to   the   demands   <>f   the 

French    civil    service    on    Hie   ground    that    tin  v    could    not 

cure  the  Bupporl  <d"  the  Chamber.    ^The  t- i \  i  1  servants," 

he  said,  '  "arc  confronted  bv  the  national  representativ 
that  i>  to  saj  bv  tin-  nation  itself."  "Against  whom," 
asked  M.  Barthou,*1  "are  the  postal  workers  <>n  .strike? 
.  .  .  it  ii  against  you,  gentlemen,  againsi  the  whole 
nation.  .  .  .  The  question  is  whether  we  are  to  abandon 
genera]  interests,  we  who  represent  the  national  sov- 
ereignty." "The  system  of  representation,"  said  Brough- 
am in  his  famous  .speech  upon  the  Reform  Hill  of  1832, 
"consists  altogether  in  the  perfect  delegation  by  the 
people  of  their  rights  and  the  care  of  their  interests  to 
those  who  are  to  deliberate  and  to  act  for  them." 

But  it  is,  as  a  distinguished  authority  has  admitted,*1 
at  lea^t  an  open  question  whether  the  theory  of  popular 
sovereignty  is  compatible  with  representative  govern- 
ment.  The  element  of  representation,  he  Bays,  "means 
that,  within  the  limit  of  the  powers  conferred  upon  them, 
the  members  are  called  upon  freely  and  finally,  to  repre- 
ss  Belgian  Con$tU*tUou,  Art.  'J.*".. 

23  >r,,/,  nt  BfUtol  Work*  (World's  Classic,  ,(!.),  II.  |( 
M  Jomrml  OfleUl,  May  n,  1907, 
2S  Ibid. 

HOOSC  of   Lords,  Oct  7.   1831.     Speeches   (Philadelphia]   18*1), 

II,  It, 

I.  uaiii,  LI  mints  do  Droit  Cun*tituti<>nnt  I   (6  cd.),  j>.  .'391. 


POPULAR    SOVEREIGNTY  221 

sent  in  the  name  of  the  people,  what  ii  considered  to  \» 
the  will  and  roice  of  the  latter.*1    There  is  herein  implied 
tctlv  that  theory  of  a  restricted  mandate  which  Burke 

and    .Mill       M    « mphat  icall  \     rejected.       HoibM'ini    himself, 

indeed,  insisted  that  sovereignty  cannot  h<  represented 
became  that  is  to  admit,  what  is  illogical,  the  possibility 

of   its   alienation.      To    part    with    paramount    power    w 

in  his  \  iew  already  to  be!  ray  it 

( '-  rtainlv  it  must  be  admitted  thai  the  theory  of  repre- 

lentation   contains  much   that    is   the  up  r<  %\    fiction.      It    if 

often  difficult  to  know  upon  uh.it  issues  a  member  hai  be<  □ 
returned.  There  are  innumerable  problems  upon  which, 
in  any  real  Bense,  a  public  opinion  cannot  !)<•  said  to  exi  f. 
James  Mill  expended  much  thought  upon  the  methods  by 
which  the  interests  of  the  representative  assembly  could 
be  kept  in  harmony  with  those  of  the  electorate,  and  his 
greater  son  emphasized  the  ease  with  which  the  power 
supposedly  delegated  by  the  people  may  be  perverted  to 
sinister  ends.1      Even  when  the  assembly  h;is  been  elected 

with  enthusiasm,  it   may  cease  rapidly   to  p088e8S  popular 

favor  before  the  expiration  of  its  term  of  power.  UA 
prime  minister,"  says  Sir  Sidney  Low,*  "may  continue 
to  govern  for  a  period  that  may  even  extend  over  years 

in    defiance    of    public    opinion":    and    a    remark    of    M. 

Cleinenceau,  who  is  m!  least  experienced,  is  to  the  same 
effect.* 

Clearly  then-  is  herein  the  serious  problem  of  being 

-  Speech  at    Bristol,  cited  above. 

'•"•    /.'-  /'/•#  §i  nt<i/iv,     QoVt  runi'  nt    (  Kveryiiim\    ed.)|    p     't-1. 

30  Contra*  Social,  Bib   III,  Ch.   15. 

31  g«MWJ    ii/nni   (li>r>  rnnn  lit .   p.   'J7. 
I!>  /,!■'•>  at, itir>    < !.>v  rrini>  nt .   p.   248,   f. 

M    I  In    <;■,;,  mm.  nt    ©/    B n./hunl    (1914),   p.    11& 

1  DiiL'uii.  /.'   Droit  Boeial,  p.  189  a 


POPULAR    SOVEREIGNTY 

ll.iin  that   |   r«  pri  H  tit  .it  i  \  •  mhlv  does  in  fact    QUITO! 

the  opinion  it  is  supposed  to  reflect',  It  is  useless  to  call 
the  sovereignty  of  the  people  effective  if  the  organs 
through  which  it  iforki  fail  to  do  justice  t<>  popular  de- 

sjr,.  Hut  what,  at  hot  torn,  is  justice  to  such  desire? 
What  popular  desire  musi  !>«•  accepted  by  the  statesman? 

\<»  one  would  ur^i'  that  lie  .should  deliberately  translate 

<  h  whim  as  it   occurs  into  the  solid   form  of  Statute.      It 

then  seems  true,  as  de  Tocqueville  insisted,     thai  our  ut- 
most  democratic  enthusiasm  ought    not   to  deny  the  n« 
( i  isiti  of  safeguards  againsl  the  tyranny  of  the  majority. 
An-  there,  in   fact,   popular  desires   to  which  attention 
oughl  not  to  be  paid,  because  they  arc  mrong?    \\ »  most 

of   us   condemn   the  continuance  of   the  war   with    America 

after  1776;  bui  it  seems  unquestionable  thai  it  was  popu- 
lar.      The  unjustifiable  execution  of  Admiral  Byng  iras 

a  sacrifice  to  the  rage  of  the  majority.  It.  is,  indeed,  ditfi- 
cull  to  avoid  the  conclusion  that,  from  the  very  situation 
by  which  he  is  confronted,  the  legislator  will  tend  to 
emphasis  less  the  sovereignty  of  the  people  than  the  sov- 
«  reignty  of  what  bis  reason  and  conscience  tell  him  to  be 
righl  conduct.  He  will  find  himself,  that  is  to  say,  not 
very  distant  from  the  denial  of  all  institutional  sov- 
ereignty, as  with  Etoyer  Collard,*1  or  from  the  belief  in 

the   supremacy   of    reason,   as    with    Benjamin   Constant.38 

The  danger,  in  such  a  position,  is,  of  course,  the  danger 
of  paternalism.    The  legislator  deals  less  with  the  popular 

iriU    than    with    the    popular    need.       We   must    not,   indeed, 

lh  iwrftini  hi  .Ittnriru.      I'.irt    1,  Cli.  15j  Mid  Cf.  Mill's  comment, 
EHif#rtaf(0fi4  and   Discuxsion*.   Vol.    II,  p.    III. 

Lecky,  Eftrfory  of  EmgUmd  hn  th  W'lliti,  Cimtmrg  (Popular 

I  (I  ).   V,.|.   IV,  pp.    I'.".    1 

cf  my  AvtkorUg  in  th,   Modern  8UU&,  Ch.  I 

38    '  <l>     I'ulili-fiii     <  'outfit  idiom  II.  ,    Vol.    I.    j).     177    1. 


POPULAR    SOVEREIGNTY  223 

draw  too  careful  ■  line  of  demarcation  between  them;  for 
t In  v  become  insensibly  transfused  in  (In  hand  of  .1  kdful 
itatesman. 

Bui  the  kind  of  difficulty  thai  is  involved  any  ob*  rver 
can  see  for  himself  who  iratch<  -  ■  party  in  search  of  an 
issu<  .     Lord  John  Russell  in   L851  deliberately  exploited 
the  dormant   anti-Catholic  prejudices  of  Greal    Britain 
to  secure  ■  popularity  thai   was  waning.       Mr.  Lloyd 
George  has  admitted  that  the  Insurance  Aci  of  L911  i 
passed  in  tin-  teeth  of  popular  disapproval :    and  the  ( )j » 
position  that  had  blessed  it  upon  its  appearance,  did  not 
fail  to  use  and  stimulate  the  antagonism  thai  made  Itself 
felt.     Issues  arc  sometimes  deliberately   recon sided  to 

a  party  SS  worthy  of  exploitation.'1      "For  nearly  twenty 

years,''   says   Sir   Sidney    Low,"    "the    National    I'nion    of 

Conservative  Associations  had  been  passing  occasional 
resolutions  in  favor  of  "Fair  Trade*1  and  Retaliation, 
without  attracting  the  Blightesi  attention.  Bui  a  Bingl< 
leading  statesman  uttered  a  few  sentences  .  .  .  and  in- 
stantly the  whole  country  was  in  a  ferment."  The  French 
lystem  of  politics  makes  the  problem  even  more  intricate 
by  the  way  in  which  the  Chamber  of  Deputies  Is  con- 
structed. It  is  impossible  for  the  electorate  directly  to 
choose  a  ministry;  and  the  mosi  popular  cabinei  may  l»< 

overturned  through  the  accidental   ill-chance  of  a  private 

intrigue  that  has  resulted  in  an  unlooked-for  interpella- 
tion. 

It    ifl    lure   worthy   of   notice    that    the   books    ahonnd    in 

lamentations  upon  the  breakdown  of  the  representative 

cf.  my  ProbUn  of  8ovoroi§nint  p,  142  f. 
*••  (f.  tl).-  London  rim  -.  How.  24,  1918. 
u  Ntm  )  wl  Nation,  Vol  107,  p   283 
«=  Gov*  ram*   of  Enflmmd  ( LS14  ),  p,  i 


224  POPULAB    SOVEREIGNTY 

t  <  in.    There  ma y  be  ■  clear  advantage  in  the  simplicity 
of  majority  rale;  certainly  the  psychological  strength  <>f 
i  government  which  can  claim  effectively  to  have  ■  dm 
piiitv  behind  ii  ifl  enonnou         There  are  yet  \asi  diffl 
Clllties   in   its  operation.     We  >»  <  in,  on   the  whole,  deter 
mined    thai    there    shall    be    no    restrictions    upon    the 
franchise;  hut  not  even  the  enthusiasm  of  Mill  bas  con- 
rinced  us  thai  opinions  ought  to  have  their  place  in  the 
Assembly  proportionately  to  their  strength.    In  the  result, 
then   are  many  opinions  thai  do  noi  get   represented  ai 

all;   and    the   majority    actually   exerted   by    the   party    in 

power  may  be  oui  of  all  relation  to  its  strength  in  the 
country.  Yet  the  evil  of  proportional  representation  is 
the  not  Less  grave  danger  thai  it  may,  on  the  one  hand, 
hinder  the  effective  management  of  government  while,  on 
the  other,  by  leading,  as  it  seems  to  lead,  to  the  group- 
Bystem,  it  may  deprive  the  electors  of  their  choice  of 
lead<  rs. 

Bui  even  if  we  could  suppose  that  the  representative 
assembly  is  an  accurate  reflex  of  public  opinion,  diffi- 
culties of  an  urgent  kind  remain.  In  every  country  in 
the  world  the  pressure  <>f  public  business  has  made  the 
legislative  body  little  more  than  the  creature  of  the  execu- 
tive; and  it  is  only  a  rare  frankness  which,  like  that  of 
Lord  Hugh  Cecil,4*  will  admit  its  desirability  on  the 
ground  thai  it  promotes  the  efficient  conduct  of  public 
business.    "The  theoretical  and  practical  deductions  from 

this    doctrine*,"    remarks    an    acute    observer/      "are    that 

One  of  the  gravest  weaknesses  of  the  Bolshevik  government  in 
♦  In  eyes  of  the  western  democracies  is  the  doubt  whether  it  has  the 
inpporl  of  tin-  majority  «>t  the  population. 

<'    Hansard,    llh     eric  .   VoL   90,   p.   915.     March   7th,   1901. 
*■  Holland,  I mi'i  riuiu  fl   Lit)<rliu,  p.  lol. 


POITLAK    SOVEREIGNTY 

the  House  <>f  Commom  is  to  become  a  men  body  for  regis- 
terintr  tin*  decrees  of  a  lecret  committee.91  In  our  own 
day,  thii  prophecy  has  become  bo  largely  fulfilled  thai 
deep  search  has  been  made  by  members  of  Parliament  to 
make  the  House  of  Commons  once  more  an  adequate  re 
bide  of  effective  control.  Even  in  America,  irhere  the 
theory  of  the  separation  of  powers  has  given  an  immense 

feguard  t<>  the  legislature,  the  growth  of  presidential 
influence  has   been   immense;   and    in    Prance,   while   the 
group-system    makes    the    French    prinu     minister    moi 
humble  than  lh^   English  colleague,  his  influence  has  in- 
creased  by  leaps  and  hounds  in  the  lasl  decade. 

It  is,  of  course,  greatly  uncertain  whether  the  sovereign 
people  can  in  fact  fulfil  the  functions  thai  theory 
expects  from  it.  Montesquieu,  indeed,  specifically  ex- 
cluded it  from  cither  a  control  over  executive  details  or 

a  share  in  legislation.     lie  thought  BUch  direct    particijei 

tion   the  chief   vice  of   ancient    >tatos;  and   he  limited    it- 

competence  t<>  the  selection  of  its  rulers.47  That  attitude, 
in  some  measure  at  least,  has  been  in  recent  times 
strengthened  by  our  experience  of  direct  legislation.  The 
statistics  suggest  that  an  electorate  is,  roughly,  twice 
as  interested  in  the  selection  of  men  as  in  the  determina- 
t ion  of  measures  ;  and  if  there  is  important  argument  upon 
the  side  of  direct  government,  it  is  the  argument  of 
theory  rather  than  experience.48  We  need  no!  argue,  with 
de  Lolme,  that  nature  has  given  to  but  few  men  the  capac- 

•a  Cf.  Hansard,  5th  series,  Vol  ME,  p.  unt.    (Sir  Godfrey  r..i 
lins);  Ibid,  Y..1.  06,  p.  1802  (Mr.  Herbert  Samuel);  Ibid,,  Vol.  100, 
p.  1282  (Mr.  Herbert  Samuel). 

<?  E$prU  &§s  Lois,  Bk.  II,  Ch.  2;  and  ef.  Bk.  XI,  Ch.  0. 

«8    I.nwrll,    PmbUe   Opini.it   mid    Popular   6  mint,    |»|>.    152    J  I  ', 

asp.  |)|>.  228-7. 


226  POPULAB    SOVEREIGNTY 

itv  to  deal  with  legislation,41  to  admit  that  neither  eco- 
Domic  pressure  nor  education,  neither  the  abaence  of 
leisure    aor    the    po        ;<>n   of    knowledge,    permits    the 

SVeragi    elector   to   pass   an  opinion   upon    political   qu< 
tions   thai    could   be  accepted   as   iiit  til.  etuallv    final.      \or 

is  t  lii^  all ;  for  it  is  obvious  enough  thai  the  average  elector 
i>  not  greatlj  interested  in  the  political  process.  1I< 
demands  results;  hut  he  does  n<»t  greatlj  cart-  about  the 
methods  by  which  those  results  are  attained.  It  i>  some- 
times difficull  to  doubl  thai  we  approach  the  epoch  so 
.ally  feared  by  de  Tocqueville  when  he  pit  die-led  thai 
men  mighl  one  day  be  willing  to  exchange  power  for  ma- 
terial comfort.       In  that   event  the  sovereignty  of  the 

people  would  hi'  no  inoiv  than  an  ant  iijuariau  memory. 

In  sober  fact,  it  is  difficull  to  avoid  the  conclusion  that 
the  dogma  attempts  to  give  a  specious  exactitude  of  form 
to  that  principle  of  consent  for  which,  in  some  fashion, 

room    must    be    found    in    the    modern    state.      But,    as    a 

dogma,  it  i^  of  no  juristic  worth.  It  is,  by  its  very  na- 
ture, incapable  of  translation  into  terms  of  some  specific 

authority   to   whose  enactments    the   courts   ni;iv    look    for 

final  reference.  The  organs  from  which  power  is  in  Eng- 
land today  derived  are  not  in  appearance  different  from 
those  in  active  existence  at  the  Revolution,  even  though 
their  substance  has  bo  vastly  changed.    Legally,  also,  the 

alignment    of   constitutional    power    in    the    United    States 

inds  where  it  did  in  1787;  practically  the  absorption 
of  much  influence  by  the  executive  on  the  one  hand,  and 

Voluntary  groupings  like   the   trade  unions,  on   the  other. 
Constitution  <i<   TAngUtorro,  Bk.  II.  Ch.  r>.  where  there  is  a 

v.  ry   int. -re   I  i 1 1  lT  analysis. 

(f.    my    1'rnl.l,  iii    <>f    . i<l minis tratixx      /"  (Smith    College 

Studl    .  Vol.   [V,  Nn    l).     (Reprinted     tpro  ) 


POPULAB    SOVEREIGNTY 

arc  the  facts  which  most  prominently  confront  the  ob- 
server.    It  is,  indeed^  obvious  thai  tin-  iraj  in  irbich  our 

political  institutions  function  ivmliis  it    impossible  at   any 

moment  to  Ascribe  to  their  true  author  the  rooti  of  any 

political  act.  One  of  the  greatest  events  in  English  liis- 
toiy   is  the  foundation  of  the   Hank  of   England  ;  hut   it    if 

impossible  to  measure  the  comparative  credit   which  at- 
ones to  Paterson  and  Montague  and  tin-  original  rob 
Bcribers.      It     was     their     influence     which     made     the 
experiment  successful,  though  the  enacting  authority  p 
a  hesitant  House  of  Commons  and  a  frankly  suspicion-, 
I  rpper  Chamber. 

The  truth  mhvIy  is  that  we  should  regard  the  idea  of 
popular  sovereignty  as  expressive  of  what  u  the  most  r<  d 

problem  in  modern  politics.  In  some  sort  it  goes  back  to 
Plato;  for  the  institutions  of  which  we  make  use  are  an 
attempt  to  answer   his   uncompromising  rejection  of   the 

democratic  system.    Plato,  in  substance,  denied  the  value 

of  any  general  public  opinion;  and  it  is  at  least  clear 
that  the  philosophic  justification  of  democratic  govern- 
ment must  begin  by  showing  that  his  argument  is  un- 
sound. Even  when  that  is  done,  there  i-  a  second  difficulty, 
of    which    he    was    unaware,  to  be  confronted.     For,  since 

direct  government  i>.  in  the  modern  state,  for  the  most 

part  impossible,  it  is  accessary  to  show  that  the  organs 
of  the  modern  state  are  capable  of  clothing  that  opinion 
with   reality.      Sovereignty  of  the  people,   in   fact,  means 

that  the  interest  which  is  to  prevail  must  be  the  interest 
of  the  mass  <>f  men  rather  than  of  any  ipecial  portion  of 

the  community;   and   it    is,   further,  an    implicit    insMei. 
that  this  general  interest   18  the  Criterion  of  political  good. 
In    that    regard,   it    is   obviously    but    little  different    from 

the  Benthamite  criterion,  and  it  may  perhaps  be  usefully 


228  POPDLAB    SOVEREIGNTY 

obter?ed  thai  the  "greatest  happiness  principle91  is  as 
little  exact  irhere  practical  utility  ii  concerned  ai  its 
predecessor.  Por  here,  aa  in  every  political  question, 
the  real  problem  liei  not  m  much  in  the  announcement 
that  the  interest  of  the  people  as  a  whole  must  he  the 
ultimate  governing  factor,  as  in  t In-  meant  taken  to  lecture 
the  Bupremacj  <>t  that  interest.  Practice,  in  this  regardi 
limps  painfully  behind  the  theory  it  ii  to  sustain. 

Nor  is  the  reason  difficult  of  access.     It  is  our  fashion 

t«>   make  of   political    theory    the   Search    for   that    ultimate 

unitv  of  interest  which  the  ideal  purpose  of  the  state 
suggests  may  one  da y  be  found.    If  is  at  Least  permissible 

to    doubt    whether    the    unitv    m>    postulated    is    more,    at 

least  thus  far  in  history,  than  a  fantastic  dream.    The 

idealist  philosophy  may  tell  us01  that  the  "pure"  instance 
only  is  important.  The  difficulty  yet  is  that  the  varia- 
tions with   which   practice  must  reckon  make  the  "pure" 

instance  at  best  of  doubtful  application.     It  is  unn<  o 
sary  to  regard  history,  with  Lord  Acton,  as  the  record 

of  the  crimes  and  follies  of  mankind  to  see  that  there  has, 
thus  far,  been  no  Btate  in  which  an  actual  identity  of 
interest  between  rulers  and  subjects  can  be  admitted. 
Por  the  fact  Burely  is  that  those  who  possess  the  engines 
of  power  will,  for  the  most   part,  tend  to  regard  their 

private  good  as  identical  with  the  general  good.  That 
i^,  in  fact,  contrary  to  much  of  the  evidence  we  pOSSCSS. 
At  the  best,  it  equates  the  intention  to  do  good  with  the 
achievement  of  good  itself.    It  is  yet  not  enough,  as  Plato 

again  and  again   insisted,  to  will   what    is   right;  it   is  also 

Deo  isary  to  know  what  it   is  right   to  will.     Whatever 

6i  Barker,  PoUiieal  Thought  from  Htrbtri  S/>,nrir,  p.  so.  There 
i  .  in  tin,  whole  chapter,  ■  rery  powerful  criticism  of  the  view  I 
.in  in  re  concern  d  In  urging. 


POPULAR    SOVEREIGNTY  229 

theory  may  say,  an  analysis  of  the  modern  itato   n 
it  m  a  complex  <>f  interests  between  which  then  is  no  u 

etNUrj   or  «\<n   |  in  dominant    harmony.      '1*1 1*    right    of  I  m- 

ployers,  foi  instance)  to  engage  «>r  discharge  their  work- 
men as  tln\  please  ii  inoonsisteni  %%  it  1 1  the  latter's  interest 

in  security  of  tenure;  and  yet,  in  the  immediate  conditions 
of  the  modern  industrial  state,  it  is  a  right  which  law- 
will  protect.  The  definition  of  right  and  wrong  by  the 
courts,  in  brief,  will  inevitably  reflect,  though  not  in  de- 
tail, the  dominant  ideas  of  the  time;  and  if  i>  not  in  the 
least  char  that  those  dominant  ideas  will  necessarily  rep- 
resent an  attempt  to  secure  the  equal  happiness  of  the 
members  of  the  .state.     The  social   interests  which   are 

translated  into  legal  rights  are  almost   always  the  rights 

of  a  limited  group  of  men. 

This,  indeed,  does  no  more  than  indicate  the  genera] 

nature    of    the    problem.      Perhaps,    also,    it     suggests    a 

method  of  approach  to  social  questions  which,  if  Less  meta- 
physically  exact    than   such   analyse-,   as    tho><-   of   Green 

and  Bosanquet,  would,  if  rightly  used,  had  to  results  of 

more    practical    character.      In    the   analysis   of    political 

problems  the  starting-point  of  inquiry  is  the  relation  l>. 

tween  the  government  of  a  state  and  if>  subjects.  For 
the  lawyer,  all  that  is  immediately  necessary  i>  a  knowl- 

i  dge  of  the  authorities  that  are  legally  competent  to  deal 
with  the  problems  that   arise.      For  him,  then,  the  idea  of 

sovereignty  has  a  particular  and  definite  meaning.     It 

(\oc^  not  matter  that  an  act  is  socially  harmful  or  un- 
popular or  morally  wrong;  if  it  issuer  from  the  authority 
competent  to  act,  and  is  issued  in  due  form,  he  has,  from 

the  legal  stand-point,  no  further  problems. 

For  political  philosophy,  on  the  other  hand,  legal  com- 
petence is  no  more  than  a  contingent   index  to  tie    fa< 


880  POPULAB    SOVEREIGNTY 

it    Deeds.      The  political   philosopher   U  0OII4  « Tin  <  1   with   the 

discovi  i\  of  motives,  the  measure  of  trills,  tin-  balance  of 
interests.  It  ii  important  for  him  thai  an  acts  m  theory 
the  irill  <>f  Parliament!  is  in  fad  the  will  of  ■  rabordinati 
official  in  the  Colonial  office.*1  II-  c  mnoi  negjed  the 
implications  of  the  perversion  of  ■  legislature  to  selfish 
ends  by   a  criminal  adventurer  like  Tweed.     The   ios 

ignty  of  Parliament   will  interest   him  as  a  legal  in 
strument,  hut  its  workings  he  will  have  to  view  in  the 
light  of  the  numerous  defeats  it  has  suffered. 

He  srill,  in  fact,  be  driven  to  the  perception  that]  po- 
litically, there  is  no  such  thing  as  sovereignty  at  all.  He 
will  find  himself,  rather,  in  the  presence  of  different  will>, 

some  of  which,  from  their  .strength,  have  more  importance 

than  others.  He  will  ascribe  to  none  a  moral  pre-emi- 
nence by  the  mere  reason  that   it  claims  political  priority. 

He  will  be  satisfied  Bimply  with  the  ascription  to  these 

wills  of  a  power  which  is  never  enfant  and  rarely  capa- 
ble  of    prophetic    announcement.      If    is    possible   that   he 

will  discover  in  the  will  of  government  something  to  which, 
from  the  nature  of  social  organization]  a  special  obedien 

is  due.  It  is  possible,  also,  that  lie  will  he  driven  to  irisi>t 
that  the  history  of  politics  must  make  ns  careful  in  the 
erection  of  safeguards  about  the  exercise  of  power.  He 
will  see  that,  ultimately,  the  basis  of  all  power  is  in  the 
Consent    offered    to    action   by   each    individual    mind:   and 

he  may  therefrom  induce  the  conclusion  that   liberty  is 

the  capacity   to   resist.      Certainly    tin-  atmosphere  of   his 

endeavor  will  correspond,  within  its  range,  to  the  task 
of  bistorv  as  Elanke  d«  fined  it. 

Not,  of  course,  that  his  effort  will  end  there.     A  politi- 

Cf.  Charles  Boner's  famous  description  in  Wakefield,  Ad  of 
Coiowtmrthm  (sd  of  1§14),  p.  -'<!>  f- 


POPULAB    SOVEREIGNTY  *81 

cal  metaphysic  inusl  h<  had,  hut  to  he  useful  it  must  Km 
grounded  in  historic  ezperien  Only  in  1 1 1  i  ->  fashion 
<an  \m-  avoid  the  danger  noted  by  <1<  Tocquerille  and 
,.,  to  oonfonnd  institutions  thai  are  ancienl  iritb  the 
eternal  needi  ol  locia]  organisation*  Nothing  is  <;i>i.  r 
than  to  paai  from  legal  right  to  moral  right,  l>ut  nothing, 

at   the  same  time,  M  more  fatal.     Certainly   the  historj  of 

popular  sovereignty  trill  teach  its  itudenta  thai  the  an- 
nouncement  of  its  desirability  in  nowise  coincides  irith 

the  attainment    of  its  substance. 


THE  PLURALISTIC  STATE  • 

Ei  m  stuck nt  of  politics  must  begin  his  researches  with 
humble  obeisance  to  the  Pfork  of  Aristotle;  ami  there- 
in, I  take  it,  he  makes  confession  of  the  inspiration  and 
assistance  he  has  had  from  the  effort  of  philosophers. 
Indeed,  if  one  took  only  the  last  century  of  intellectual 
history,  Dames  like  Hegel,  Green,  and  BosanquH  must 
induce  in  him  ■  certain  Bense  of  humility.  Por  the  direc- 
tion of  bis  analysis  has  been  given  its  perspective  by  their 
thought.  The  end  bis  effort  must  achieve  lias  been  by  no 
other  thinkers  bo  clearly  or  so  wisely  defined. 

Yet  the  philosophic  interpretation  of  politics  has  suf- 

Fered  from  one  serious  weakness.  It  is  rather  with 
ttaatilehre  than  with  poHttic  that  it  lias  concerned  itself. 
[deals  and  forms  have  provided  the  main  substance  of  its 
debates.  So  that  even  if,  as  with  Hegel  and  Green,  it 
has  had  the  battles  of  the  market-place  most  clearly  in 
mind,  it  has  somehow,  at  least  ultimately,  withdrawn 
it -elf    from    the    arena    of    hard    facts    to    those    remoter 

heights  where  what  a  good  Platonisi  has  called1  the  "pure 
instance*1  of  the  state  may  be  dissected.    Nor  has  it  seen 

political  philosophy  sufficiently  outside  the  arena  of  its 
own    problems.      Aristotle    apart,    its    weakness    has    lain 

*  Reprinted  from  tin-  PhUotophioaX  Roviow,  Mot.  1919. 

i  Barker,  PoHtieal  Thought  in  England  from  Horbori  Snomoof  to 

I'i'i,  |>.  GS  f. 

282 


THE    PLURALISTIC    STATE 

<  A.-u-t  1  v  in  those  minutisB  of  psychology  which,  collectiv<  I  j , 
arc  all  import  ant  to  tin   itadenl  of  administration.     Phi 
losophv    Minis,   in   politico   at    least,   to   take   too   Little 
thought  for  the  categories  of  ipaoe  and  time. 

The  legal  attitude  has  been  impaired  by  ■  somewhat 
.similar  limitation.    The  lawyer,  perhaps  of  to  <«  isity,  I 

Concerned  himself  not   with  right   hut   with  right-,  and  his 

conseqnenl  preoccupation  with  the  problem  of  origins, 
the  place  of  ultimate  reference,  has  mad.  him.  al  1<  isi  to 
the  interested  outsider,  unduly  eager  to  confound  the 
legally  ancient  with  the  politically  justifiable.    One  might 

oven  make  out  a  case  for  the  assertion  that  the  lawyer 
is  the  luad  and  centre  of  our  modern  trouble;  for  the 

monistic   theory   of   the   state   goes   hack,   in    its   scientific 

statement,  to  Jean  Bodin.  The  latter  became  the  spirit- 
ual parent  of  Hohbes,  and  thence,  through  Bent  ham,  the 
ancestor  of  Austin.  On  Austin  I  will  make  no  comment 
here;  though  a  reference  to  an  ingenious  equation  of 
Mait land's  may  perhaps  be  pardoned.1 

It  is  with  the  lawyers  that  the  problem  of  the  modern 
state  originates  as  an  actual  theory;  for  the  lawyer's 
formula'  have  been  rather  amplified  than  denied  by  the 
philosophers.  Upon  the  historic  events  which  surround 
their  effort  I  would  say  one  word,  since  it  is  germane  to 
the  argument  I  have  presently  to  make.  \\'«  must  < 
lessly  remember  that  the  monistic  theory  of  the  state  i 

born  in  an  age  of  crisis  and  that  each  period  of  its  revivi 
fication   has   synchronised   with   some   momentous   event 

which  has  signalized  ■  change  in  the  distribution  of  polit- 
ical power.  Bodin,  as  fa  well  known,  was  of  that  party 
which,   in   an   age  of   religious   warfare,    asserted)    lest    it 

2  Cf.  The  Life  of  r.  W.  UdUkmd,  bf  H.  A.  L  Fisher,  p.  ii:. 


/ 


14  THE    PLURALISTIC    STATE 

perish    in    an   alien    hut t If,    tin-    supremacy    »f    the    itate* 

Klohla's  sought  the  means  of  order  in  a  period  when  King 
and  Parliament  battled  for  the  balanot  of  power,  Ben- 
1 1 wi in  published  his  Fragment  on  the  eve  of  the  Declai 
tion  of  Independence;  and  Adam  Smith,  in  the  lame  year, 
irai  outlining  the  progranune  of  another  and  profounder 
revolution,  Hegel's  philosophy  irai  the  outeome  of  a 
vision  of  German  multiplicity  destroyed  by  the  unity  of 
Fran  Austin's  book  was  conceived  when  the  middle 
classes  of  Prance  and  England  had,  in  their  various  waj  i, 
achieved  the  conquest  of  a  state  hitherto  but  partly  open 
to  their  ambit  ion. 

It  seems  of  peculiar  significance  that  each  aas<  rtion  of 

the  monistic  theory  should  have  this  background.  I  can- 
not stay  here  to  disentangle  the  motives  through  which 
men  so  different  in  character  .should  have  embraced  a 
theory  as  similar  in  substance.  The  result,  with  all  of 
them,  is  to  assert   the  supremacy  of  the  state  over  all 

other  institutions.  Its  primary  organs  have  the  first 
claim  Upon  the  allegiance  of  men;  and  Ilohbes's  insist- 
ence4  that    corporations  other  than   the  state  are  hut    tin 

manifestations  of  disease  is  perhaps  the  best  example  of 
its  ruthless  logic.  Hobbes  and  Hegel  apart,  the  men  I 
have  noted  srere  lawyers;  and  they  w>  i-  ecking  a  means 
whereby   the  source  of  power  may  have  some  adequate 

justification.  Bentham,  of  course,  at  no  point  beatified 
the  state;  though  zeal   for  it    is  not   wanting  in  the  earlier 

thinkers  or  in  Hegel.    What,  I  would  urge,  the  lawyers 

did  Was  to  provide  a  foundation  for  the  moral  superstruc- 
ture of  the  philosophers.     It  was  hv  the  latter  that  the 

■'«   The  background   of  his  book   has   recently   lieen   exhaustively  out- 
lined by  Roger  Cbauvlie*  in  his  .i,,m  Bodl*  (Paris,  ISIS),  esp.  pp. 

813    f.  I    L'viuthnn,   Ch,    H. 


Tin;    ru  k\u>ti<    mail  t>., 

monistic  shite  was  elevated  from  th<  plane  of  logic  to  the 
plane  of  ethi<  1 1  ^  rights  then  became  matter  of  right. 
Its    sovereignty    became    spiritualized    into    moral    pn 

» mini  lu 

The  transition  is  simple  enough.     The  itate  Lfl  today 

the  one  compulsory    form   of  association;"'   and    for   mo 

than  two  thousand  years  pre  have  been  taught   thai   its 
purpose  is  the  perfect   life.     It   thus  seems  to  acquire  ■ 
flavor  of  generality  which  is  absent   from  all  other  in 
stitutions.     It  becomes  instinct  with  an  universal  inten 
to  which,  as  it  appears,  no  other  association  may  without 
inaccuracy  lay  claim.    Its  sovereignty  thus  Beems  to  rep 
resent   the  protection  of  the  universal  aspect  of  men  — 
what    Rousseau  called  the  common  good  —  against    the 

intrusion  of  more  private  aspects  at  the  hands  of  which 
it    might    otherwise    suffer    humiliation.       The    state    is    an 

absorptive  animal;  and  there  are  few  more  amazing  tracts 
of  history  than  that  which  records  its  triumph  over  the 
challenge  of  competing  groups.  Th<  ri  se  ms,  at  least 
today,  no  certain  method  of  escape  from  it-  demands. 
Its  conscience  is  supreme  over  any  private  conception  of 

good    the    individual    may    hold.      It    sets    the    terms    upon 

which  the  lives  of  trade-unions  m.iv  be  Lived.     It  dictate 

their  doctrine  to   churches;  and,   in    England   at    least,   it 

was  a  state  tribunal  which,  as  Lord  Westbury  said,  dh 

missed  hell  with  costs.'  The  area  of  its  enterprise  has 
Consistently  grown  until   today  there  is  qo  field  of  human 

activity  over  which,  in  some  degree,  its  pervading  influ- 
ence may  not  be  detected. 

Hut    it   is  at    this  point    pertinent    to  inquire  what   exact 

&    1    say    today;    for    it     is    important     to    rcmemhrr    that,    for    the 
\\  «    tern   World,  this  was  tru«-  of  tin-  Church  until  the  Reformat  ion. 

\    \v.  Hcnn,  History  of  EngUtk  RatiommU$m  in  th>    .Yin* (tenth 
Centuri/,    Vol.    II,   p.    188. 


286  THE    PLURALISTIC    STATE 

meaning  is  to  l>»  attached  to  an  institution  so  vita]  as 
thi>.     With  <>ih   definition  only  I  shall  trouble  you.    UA 

state,"    writes    Mr.    Zniimern,'    "can    be    defined)    in    legal 

langiiag( ,  as  a  territory  om  r  ulnch  there  is  a  government 

claiming  unlimited   authority."      The  definition,  indeed,   is 

not  quite  correct  ;  for  no  government  in  the  United  Stab  i 

OOuld  claim,  though  it   might   USUrp,  unlimited  power,     lint 

it  is  a  foible  of  the  lawyers  to  insist  upon  the  absence  of 

legal  limit   to  the  authority  of  the  .state;  and  it   18,  I  think, 

ultimately  clear  that    the  monistic   theory   is  hound  up 

frith  some  >uch   assumption.      But    it    18   exactly   here   that 

our  main  difficult?  begins  to  emerge.     The  state,  as  Mr. 

Zimmern  here  points  out,  must  act  through  organs;  and, 
in  the  analysis  of  its  significance,  it  is  upon  government 
that  we  must  concentrate  our  main  attention." 

Legally,  no  one  can  deny  that  there  exists  in  every  state 

some  organ  whose  authority  is  unlimited.  But  that 
legality  is  no  more  than  a  fiction  of  logic.  No  man  has 
stated  more  clearly  than  Professor  Dice}  the  sov- 
<  n  ign  character  of  the  King  in  Parliament;  no  man  has 
been  also  so  <|uick  to  point  out  the  practical  limits  to  this 

supremacy.      And  if  logic  is  thus  out  of  accord  with  the 

facts  of  life  the  obvious  question  to  be  asked  i^  why  un- 
limited authority  may  he  claimed.  The  answer,  I  take  it, 
i-  reducible  to  the  belief  that  government  expresses  the 

largest   aspect   of  man  and  is  thus  entitled   to  institutional 

expression  of  the  area  covered  by  its  interests.  A  his- 
tory, of  course,  lies  back  of  that  attitude,  the  main  part 
of  which  Would  be  concerned  with  the  early  struggle  of 
the  modern  state  to  be  born.      Nor  do  I  think  the  logical 

7  Nationality  and  Govt  rnment,  p.  56. 

*   Vf.  my  Authority  in  th,    Mmhrn  Stnt,.  DP.  M  ff. 

»   Cf.    Jin    Laic  of  the   Cmxtit  ufmn    (Hth  id.),  pp.   .J7    fT. 


Tin:    PLURALISTIC    STATE  281 

character  of  'he  doctrine  has  all  the  sanction  claimed 
for  it.  It  is  onlv  frith  the  decline  of  theories  «>f  natural 
law  that  Parliament  become*  the  complete  master  of  its 
destinies*     Ami   the   internal   Limit*   which   the  juris!    i- 

dri\<n    to    admit     |>ro\e,    on    examination,    to    be    tin*    main 

problem  for  considers!  ion. 

There  are  manv  different   angles   from   ffhich   this   claim 
to   unlimited  authority   may   be  proved   inadequate.      That 

government    is   the   most    important   of   institutions   few, 

except  theOCrats,  could  be  found  to  deny;  but  that  its 
importance  warrants  the  monistic  assumption  herein  im- 
plied raises  far  wider  questions.    The  test,  I  would  urge, 

is   not    an  <i   />ri<>ri   statement  of  claim.      Nothing   has   led 

us  farther  on  the  wrong  path  than  the  simple  teleologies] 

term*  in  which  Aristotle  stated  his  conclusion-.  For 
when  we  say  that  political  institutions  aim  at  the  good 
life,  we  need  to  know  not  only  the  meaning  of  good,  hut  / 
aKo  those  who  are  to  achieve  it,  and  the  methods  by  which 
it  is  to  be  attained.  What,  in  fact,  we  have  to  do  is  to 
study  the  way  in  which  this  monistic  theory  lias  worked; 
for  our  judgment  upon  it  must  depend  upon  consequent 
to  the  mass  of  men  and  women.  I  would  not  trouble  you 
unduly  with  history.  But  it  is  worth  while  to  bear  in 
mind  that  this  worship  of  state-unity  is  almost  entirely 
the  offspring  of  the  Reformation  and  therein,  most 
Largely,  an  adaptation  of  the  practice  of  the  medieval 

church.  The  fear  of  variety  was  not,  in  its  early  days, 
an  altogether  unnatural  thing.  Challenged  from  within 
and  from  without,  uniformity  seemed  the  key  to  self- 
pr»  seryation.10     Hut  when  the  internal  history  of  the  state 

i°  Cf.   Professor   Mclluaiiis   Introduction   to  big   ediUon  of   the 

J'nlitirnl  Works  of  Jamti  I.  Slid  my  comment  thereon,  /'.-/.  Sri.  yuar- 

t>ri;i.  Vol.  :u,  j).  890  (reprinted  In  this  rohune). 


s  THE    PLURALISTIC    STATE 

i-  examined,  its  supposed  unit v  of  purpose  and  of  •  Wort 
sinks,  with  acquaintance)  Into  nothingness.  What  in  fact 
confront!  ih  is  ■  complei  of  Interests;  and  between  noi 
few  of  t lii-iii  ultimate  reconciliation  is  impossible.  We 
mint,  for  example,  harmonise  the  modern  secular  state 

with    a    Unman   Church    based    upon    the    principles   of    the 

Encyclical  of  1864;  nor  can  ire  find  the  basis  <>f  enduring 
collaboration  between  trade-unions  aiming  at  the  control 
of  industry   through   the  destruction  of  capitalistic  or- 

■  iii/ahun  and  the  upholders  of  capitalism.  Historically. 
we  always  find  that  any  system  of  goyernmenl  is  domi- 
nated by  those  who  at  the  tune  wield  economic  power; 
and  what  they  mean  by  "good"  is,  for  the  most  part,  the 
preservation  of  their  own  interests.      Perhaps  I  put   it   too 

crudely;  refined  analysis  would,  maybe,  su<rjrest  that  th<  \ 

are  limited  by  the  circle  of  the  ideas  to  which  their  in- 
terests would  at  the  first  instance  give  rise.  The  history 
of  England  in  the  period  of  the  Industrial  Revolution  is 

perhaps    the    most    striking   example   of    this    truth.      To 

Buggest,  for  instance,  that  the  government  of  the  younger 
Pitt  was,  in  its  agricultural  policy,  actuated  by  some 
conception  of  public  welfare  which  was  equal  as  between 
squire  and  laborer,  is,  in  the  light  of  the  evidence   so 

superbly  discussed  by  Mr.  and  Mrs.  Hammond,  utterly 
impossible.11     There  is  nowhere  and  at   no  time  assurance 

of  that  consistenl   generality  <>f  motive  in  the  practice 

of  government  which  theory  would  suppose  it  to  possess. 

We    cannot,    that    is    to    say,    at    any    point,    take    for 

granted   the  motives  of  governmental    policy,   with   the 

natural  implication  that  we  must  erect  safeguards  against 

their    abuse.      These,    I     venture    to    think,    the    monistic 

theory   of   the  state   at    no   point,   in   actual    practice,   sup- 

n  Sec  their  brilliant  volume,  / /"    VWngi   L&bonr  (ifii). 


THE    PLURALISTIC    STATE  280 

plies.  For  its  insistence  on  unlimited  Authority  in  the 
governmental  organ  makes  oyer  to  it  the  immense  power 
that  comes  from  the  possession  of  legality.  What,  in 
the  itress  of  conflict]  this  comes  to  mean  is  the  attribution 
of  inherent  tightness  to  acts  of  government.  These  are 
somehow  taken,  and  that  with  hut  feeble  regard  to  their 
actual  substance,  to  be  acta  of  the  community.     Som 

thing   that,   for   want    of   a    better    firm,   WC   call    the   COD 

niunal  conscience,  is  supposed  to  want  certain  things.  We 
rarely  inquire  either  how-  it  comes  to  want   them  or  to 

need  them.  We  simply  know  that  the  government  en- 
forces   the   demand    so   made   and    that    the    individual    or 

group  is  expected  to  i^ive  way  before  them.  Yet  it  may 
well  happen,  as  we  have  sufficiently  seen  in  our  experience  . 
that  the  individual  or  the  group  may  he  right.     And  it 

1S  difficult  to  see  how  a  policy  which  thus  penalize  a  all 
dissent,  at  least  in  active  form,  from  government,  can 
claim  affinity  with  freedom.  For  freedom,  as  Mr.  Graham 
Wallas  has  finely  said,11  implies  the  chance  of  continuous 
initiative.      Hut   the  ultimate   implication   of   the   monistic 

slate  in  a  society  so  complex  as  our  own  is  the  trans- 
ference of  thai  freedom  from  ordinary  men  to  their  rulers. 

I  cannot   here  dwell   upon  the  more  technical   results  of 

this  doctrine,  more  particularly  on  the  absence  of  liability 

for  the  faults  of  government  that  if  has  involved.1      Hut 

it    is  in  some  such  background  as   this   that    the  pluralistic 

theory  of  the  state  fakes  its  origin.    Tt  agrees  with  Mr. 

Zimmern   that    a   state  i>  a   territorial   society  divided   into 

II  Cf,  his  article  in  the  N$u  8tat4*man,  Sept  25,  1015.     I  owe  mj 
knowledge  of  this  winning  definition  t<>   Mr.   A.   B.  Zimmern'i    \ 

tinri'ilifii  njt'l  < !>>r,  rn  nu  tit .   ]>.    r>7. 

ii  c(.  tnv  paper  on  the  RtipontibUUy  of  tf>»   8UUt  In  Enilnnii. 

32  Ilnrv.  I..   Rev.,  p.   H7   (reprinted  in  this  volume). 


840  THE    PLURALISTIC    STATE 

government    and    lubjects,   but    it    differs,   as    you    w\\]   ob- 

rve,  from  his  definition  in  thai  it  makes  no  assumptions 

as    fo    the    .nit  horil  v    a    government    should    |)o  .       And 

the  n  i -on  for  this  fact  ii  simply  that  it  ii  consistently 
» \jM-rinu nt alist  in  temper.    It  realises  that  the  .state  has 

a  history  and  it   is  unwilling  to  MIHimf  that   we  ha\e  today 

given  to  it  any  permanence  of  form.  There  is  an  admira- 
ble remark  of  Tocqueville'a  on  this  point  which  ire  too 
little  bear  in  mind.14  And  if  it  be  deemed  necessary  to 
dignify  this  outlook  by  antiquity  ire  can,  I  think,  produce 
great  names  as  its  sponsors.  At  hast  it  could  be  shown 
that  the  germs  of  our  protest  are  in  men  like  Nicholas 

of  Cllfta,  like  Althusius,   Locke,  and    Rover-Collard. 

It  thus  seems  that  we  have  a  twofold  problem.  The 
monistic  state  is  an  hierarchical  struct  ure  in  which  power 
i>,  for  ultimate  purposes,  collected  at  a  single  centre.  The 
advocates   of   pluralism   are   convinced   that   this    is    both 

administratively    incomplete    and    ethically    inadequate. 

Ybu   will  observe  that   I   have  made  no   reference   here  to 

the  lawyer's  problem.     Nor  do  I  deem  it  necessary;  for 

when  we  are  dealing,  as  the  lawyer  deals,  with  sources  of 

ultimate   reference,   the  questions  are  no  more  difficult, 

perhaps  I  should  also  add,  no  easier,  than  those  arising 
under  the  conflict  of  jurisdictions  in  a   federal   state. 

It  is  with  other  questions  that  we  are  concerned.  Let 
us  note,  in  the  first  place,  the  tendency  in  the  modern 
State  for  men  to  become  the  mere  subjects  of  administra- 
tion. It  is  perhaps  as  yet  too  early  to  insist,  reversing 
a  famous  generalisation  of  Sir  Henry  Maine,  that  the 
movement  of  our  society  is  from  contract  to  status;  but 
there  is  at  least  one  sense  in  which  that  remark  is  .signifi- 
i  mt.     Amid  much  vague  enthusiasm  for  the  thing  itself, 

n  Souvenirs,  p.  102. 


THE    PLURALIST!*     STATE  S4  l 

every  observer  mutt  note  a  decline  in  freedom*  What  wt 
mot!  greatly  need  ii  to  beware  1  * — t  ire  lose  that  sense  of 
spontaneity  which  enabled  Aristotle  to  define  citizenship   * 

/h  the  capacity  to  rule  nol  less  than  to  !><■  ruled  in  tori 

We   belieTe    that    this   can    best    be   achieved   in    a    state   of 

frbicb  the  structure  ii  nol  hierarchical  but  coordinate,  in 

winch,  that  is  to  say,  s<>\ ereignl y  is  partitioned  upon  lome 
basis  of  function.  For  the  division  of  power  makes  men 
more  apt  to  responsibility  than  its  accumulation.  A  man, 
or  even  a  legislature  that  is  overburdened  with  a  multi 
plicitv  of  business,  will  not  merely  neglect  that  irhicfa  he 
ou^ht  to  do;  he  will,  in  actual  experience,  surrender  his 
powers  into  the  hands  of  forceful  interests  which  know 
the  way  to  compel  his  attention*  He  will  treal  the  unseen 
as  non-existent  and  the  inarticulate  as  contented.  The 
result  may,  indeed,  he  revolution;  but  experience  suggests 

that    it    is  more  likely  to  be   the  parent  of  a  despotism. 

Nor  is  this  all.  Such  a  system  must  needs  result  in  a 
futile  attempt  to  apply  equal  and  uniform  methods  to 
Varied  and  unequal  things.  EverV  administrator  has  told 
ii-  of  the  effort  to  arrive  at  an  intellectual  routine;  and 
where  the  problems  of  government    are  as   manifold   as  at 

present  that  leads  to  an  assumption  of  similarity  which 
is  rarely  borne  out  by  the  facts.    The  person  irho  wishes 

t<>    govern    America    must    know     that     he    cannot     assume 

identity  of  conditions  in   North   and   South,   Bast    and 
West.     He  must,  that  is  to  say,  assume  that  his  first  duty   * 
is  not  to  ass.rt  a  greatest  common  measure  of  equality  but 

to  prove  it.      That   will,  I   BUggest,  had   most    critical   ob- 

serv<  ri  to  perceive  that  the  unit  with  which  we  are  trying 
to  deal  is  too  large  for  effective  administration.  The 
curiosities,  say  of  the  experiment  in  North  Dakota,  are 

11   I'ulitia,   Bk.    III.  I  h.    1,    1274 


242  THE    PLURALISTIC    STATE 

largely  due  to  this  ut  t » ni| >t  on  the  purl  <>f  predominating 
interests  to  neglect  vital  differences  of  outlook.  Such 
differences,  moreover,  require  a  sovereignty  of  their  own 
to  express  the  needs  they  imply.  Nor  must  ire  negleoi  the 
importani  fnci  thai  in  an  area  like  the  United  States  the 
individual  will  too  often  gei  losi  in  its  very  vastness.  II<- 
<r»'ts  a  sense  of  impotence  as  a  political  factor  of  which 
the  result  is  a  failure  properly  to  estimate  the  worth  of 
citizenship.     I  cannot  stay  to  analyse  the  result  of  that 

I  w  % 

mistaken  estimate.  I  can  only  say  here  thai  I  am  con- 
vinced thai  it   is  the  nurse  of  social  corruption. 

Administratively,  therefore,  ire  need  decentralization; 

or,  if  you  Like,  we  need  to  revivify  the  conception  of  fed- 
eralism which  is  the  great  contribution  of  America  to  po- 
litical science.  But  we  must  not  think  of  federalism  today 
merely  in  the  old  spatial  terms.  It  applies  not  less  to 
functions  than  to  territories.  It  applies  not  less  to  the 
government  of  the  cotton  industry,  or  of  the  civil  service, 
than  it  does  to  the  government  of  Kansas  and  Rhode 
Island.  Indeed,  the  greatest  lesson  the  student  of  gov- 
ernment lias  to  learn  is  the  need  for  him  to  understand 
the  significance  for  politics  of  industrial  structure  and, 
above  all,  the  structure  of  the  trade-union  movement."" 
The  main  factor  in  political  organization  that  we  have 
to  recover  is  the  factor  of  consent,  and  here  trade-union 
federalism  has  much  to  teach  us.  It  has  found,  whether 
the  unit  be  a  territorial  one  like  the  average  local,  or  an 

industrial  like  thai  envisaged  by  the  shop-steward  move- 
meni  in  England,  units  sufficiently  small  to  make  the 
individual  fed  Bignificani  in  them.    What,  moreover,  this 

i«  A    hook    that    would    <l<>    for   the    English-speaking    world    what 
M.   Paul-Bonconr  did  twenty  yens  mi'ii  for  France-  in  Ml  P<  d <  ralinmv 

Weemoudqmt  iroold  !>••  of  greal  lervicc 


THE    PLURALISTIC    STATE  M8 

development  of  industrial  organisation  bai  done  is  to 
separate  the  processes  of  production  and  consumption  in 

such    fashion    as    to    dettroyi    for    practical    purposes,   the 

unique  sovereignty  of  a  territorial  parliament.  It  ii  a 
nice  question  for  the  upholders  of  the  monistic  theory  to 
debate  as  to  where  the  effective  sovereignty  of  America 
la\  in  the  controversy  over  the  Adamson  Lai  ;  or  to  con- 
sider what  is  meant  by  the  vision  of  thai  consultative  in- 
dustrial body  which  recent  English  experience  seems  likely, 

in  the  not   distant   future,  to  bring  into  being.11 

The  facts,  I  Buggest,  arc  driving  us  towards  an  effort 
at  the  partition  of  pout  r.  The  evidence  for  thai  conclu- 
sion you  can  find  on  all  sides.  The  ci\il  services  of  Eng- 
land and  France  are  pressing  for  such  a  reorganization.1" 
It  is  towards  such  a  conclusion  that  what  we  call  too 
vaguely  the  labor  movement  lias  directed  its  main 
energies.19  We  are  in  the  midst  of  a  new  movement  for 
the  conquest  of  self-government.  It  finds  its  main  im- 
pulse in  the  attempt  to  disperse  the  sovereign  power  lie- 
cause  it  is  realized  that  where  administrative  organization 
is  made  responsive  to  the  actual  associations  of  men, 
there  is  a  greater  chance  not  merely  of  efficiency  but   of 

freedom  also.     That  is  why,  in  Frame,  there  has  been 

for  some  time  a  vigorous  renewal  of  that  earlier  effort 
of  the  sixties  in  which  the  great  Odillon-Harrot  did  his 
noble8l    work;*0  and  it   does  not   seem  unlikely   that    some 

reconstruction  of  the  ancient  provinces  will  at  lasl  com- 
pensate for  the  dangerous  absorptiveness  of  Pari       Hie 

British   House  of  Commons  has  debated   federalism  as  the 

17  Sec  tin-  A  port  <>f  th<  ProvUional  Joint  Committee  of  th*  lndu*- 
trhil    <  'mifrr'  no  .      London,    1!»I'>. 

13   See    my    .tuthmitii   in    tli>     ModST*   Stuff.   Cli.    5. 

1»  Cf.   Coir,  Self -(t'ov-rn mint    in    Induxtnj.   /<-r im.,  rsp.   Cli 

2o  Ouillon-Burrut,  L)v  lu  centralization. 


244  THE    PLURALISTIC    state 

remedy  for  its  manifold  jUi;11  and  the  untied  potenti- 
alities of  Ciirinan  decentralisation  may  lead  to  the  reeolti 
■o  long  expected  now  thai  the  deadening  prearare  of 
Prussian  domination  has  been  withdrawn.    vVe  are  Learn*1 

ing,    as    John    Stuart    Mill    pointed    Out    in    an    admirable 

thai  "all  the  facilities  which  a  government  en- 
joys of  access  to  information,  all  the  meam  which  it  po 
Besses  of  remunerating,  and  therefore  of  commanding,  the 
best  available  talenl  in  the  market,  are  not  an  equivalent 
for  the  one  greai  disadvantage  of  an  inferior  in t ♦  n>t  in 
the  result."  Por  ire  now  know  that  the  consequent  of  that 
inferior  interest  i^  the  consistent  degradation  of  free- 
dom.1^ 

I  have  spoken  of  the  desire  for  genuine  responsibility 
and  the  direction  in  which  it  may  be  found  for  adminis- 
trative purposes.  To  this  aspect  the  ethical  side  of  po- 
litical pluralism  stands  in  the  closest  relation.  Funda- 
mentally, it  is  a  denial  that  a  law  can  be  explained 
merely  as  a  command  of  the  sovereign  for  the  simple 
reason  that  it  denies,  ultimately,  the  sovereignty  of  any- 
thing save  right  conduct.  The  philosophers  since,  par- 
ticularly, the  time  of  T.  H.  Green,  have  told  us  insistently 
that  the  state  is  based  upon  will;  though  they  have  too 
little  examined  the  problem  of  what  will  is  most  likely  to 
receive  obedience.  With  history  behind  us,  we  are  com- 
pelled  to  conclude  that  no  such  will  can  by  definition  be 
a  good  will ;  and  the  individual  must  therefore,   whether 

by  himself  or  in  concert  with  others,  pass  judgment  upon 

its  validity  by  examining  its  substance.     That,  it  is  clear 

ParUamiBtmry  Debates,  June  Mb  and  5th,   1919. 
«  PrimetpUs  of  PsHMeal  Vsoaossji  (2d  «•<!.),  Vol.  II,  p.  181. 

M  On  .ill  this,  ef.  my  Problem  of  Administratiit  Arms  (Smith 
College  Studio,  Vol  IV,  No.  1),  supra. 


THE    PLURALISTIC    BTATE  346 

enough,  makes  an  end  of  tin-  so\inigntv  of  the  > t .•  1 1 .   in 

its  cl«  il  conception.      It    puts  th<    state's  nets  —  pi.i 

tiealh,    M    I    have    pointed    out,    tin-    acts   of    its    primary 

organ]  government  —  on  ■  moral  parity  frith  the  ads  of 

anv   other  association.      It    gives   to   the  judgments   of   the 
State  exactly  tin    power  I  hey  inherently  DO  by  \irt 

of  their  moral  content,  and  no  other.  If  the  English  itai 
should  wish,  as  in  177h\  to  refuse  colonial  freedom;  if 
Prussia  should  choose  to  embark  upon  a  Kult  urkampf ; 
if  anv  state,  to  take  the  decisive  instance,  should  choose 
to  embark  upon  war;  in  each  case  their  is  no  a  jirinri 
tightness  about  its  policy.  You  and  I  are  part  of  the 
leverage  bv  which  that  policy  is  ultimately  enacted*  It 
therefore  becomes  a  moral  duty  on  our  part  to  examine 
the  foundations  of  .state-action.     The  last    sin   in   politics.  , 

is  unthinking  acquiescence  in  important  decisions. 

I  have  elsewhere  dealt  with  the  criticism  that   this  vi» -w 

results  in  anarchy.24    What  it  is  more  profitable  here  to 

examine  is  its  results  in  our  scheme  of  political  organiza- 
tion. It  is,  in  the  first  place,  clear  that  there  are  DO  de- 
mands upon  our  allegiance  except  the  demands  of  what 
we  deem  right  conduct.  Clearly,  in  such  an  aspect,  Pfe 
need  the  means  of  ensuring  that  we  shall  know  right  wh<  n 
we  see  it.  Here,  I  would  urge,  the  problem  of  rights  be- 
comes significant.  For  the  duties  of  citizenship  cannot 
be   fulfilled,  save  under  certain   conditions;   and   it    is   m 

-arv  to  ensure  the  attainment  of  those  conditions 
against  the  encroachments  of  authority.  I  cannot  here 
attempt  any  sort  of  detail;  but  it  is  obvious  enough  that 
freedom  of  ipeech,*1  a  living  wage,  an  adequate  education, 

2«  Authority  in  th<   Modtrn  fffots,  i»j>.  98-4. 

Cf.    the    brilliant    artclr    of    my    COUeagQe,    PfOfCSSOf    '/.    Chaff    • 
Jr.,  in  89  Il'irv.  L.  I  f. 


L>4fi  THE    PL1  UAUSTir    BTATE 

a  proper  amount  of  leisure,  the  power  to  combine  for  i 
i    J  effort)  .uf  all  «>f  tlicm  Integra]  to  citisenship.    Th»v 

an-  natural  rights  in  the  MOM  that   without    them  the  pur- 

pote  ol  the  state  cannot  be  fulfilled.    Thej  an-  natural 

also  in  tin  .mum-  that  t  lu  v  do  not  depend  upon  the  itate 
for    their    validity.       Tin  \     are    inh<  n  rit     in    the    <  ■niirn-nt 

worth  ol  human  personality.  Where  they  are  denied,  the 
itate  clearly  destroys  whatever  claims  it  has  upon  the 

loyalty  of  mm. 

Rights  Mich  as  these  are  necessary  to  freedom  because 

without    them   man    is   lost    in   a    world   almost    beyond    the 

reach  of  his  understanding.     We  have  put  them  outside 

the  power  of  the  state  to   traverse;  and   this   again   mibt 

mean  a  limit  upon  its  sovereignty.  If  you  ask  what  guar- 
antee exists  against  their  destruction  in  a  state  where 
power  i^  distributed]  the  answer,  I  think,  is  that  only  in 
such  a  state  have  the  masses  of  men  the  opportunity  to 
understand  what  is  meant  by  their  denial.  It  is  surely, 
for  example,  significant  that  the  movement  for  the  re- 
vival of  what  we  broadly  term  natural  law  should  derive 
its  main  strength  from  organized  trade-unionism.  It  is 
hardly  less  important  that  among  those  who  have  per- 
ceived the  real  significance  of  the  attitude  of  labor  in  the 
Taff  Vale  and  Osborne  cases  should  have  been  a  high 
churchman  most  deeply  concerned  with  the  restoration 
of  the  church.*'  That  is  what  coordinate  organization 
will  above  all  imply,  and  its  main  value  is  the  fact  that 
what,  otherwise,  must  strike  us  most  in  the  modern  state 
i-  the  inert  receptiveness  of  the  multitude.  Every  student 
of  politics  knows  well  enough  what  this  means.  Most 
would,  on  analv-is,  admit   that   its  dissipation   is  mainly 

M  J.    NYvillc    PlgglS,    Chariot    in    (ho    Mmfrrn    Staff.     The    rerrnt 
death  of  Dr.  Figgis  is  an  irreparable  blow  to  BogUsb  scholarship. 


Till:    1*1.1  KALISTK     BTATE  2*7 

dependent  upon  an  understanding  of  social  mechanisms 
now  largely  hidden  from  Mir  multitude*  The  only  hopeful 
u,tv  of  breaking  down  thii  inertia  ii  by  the  multiplication 
oi  ( .  nt  !•<  >  of  authority.  When  a  man  is  f  rained  t<>  iervi< 
in  a  trade  union,  he  cannot  avoid  leeing  bow  thai  activity 
ii  related  to  tin-  irorld  outside.  When  In-  gets  on  .»  ichool- 
committee,  the  general  problems  of  education  begin  to 
unfold  themselves  before  him.  Paradoxically,  indeed,  s 
may  say  that  a  eonsistenl   decentralisation  is  tin-  only 

effective  Cure  for  an  undue  localism.  Thai  i->  because  in- 
stitutions wit ! i  genuine  power  become  ethical  ideal  and 
thus  organs  of  genuine  citizenship.  But  if  the  Local 
Governmeni  Board,  or  the  Prefect,  sit  outside,  the  result 
is  a  balked  disposition  of  which  the  results  are  psycho- 
logically well  known.  A  man  may  obtain  some  compen- 
sation for  his  practical  exclusion  from  the  inwardness  of 
politics  by  devotion  to  golf.  Hut  I  doubt  whether  the 
compensation  is  what  is  technically  termed  suhlimat  ion, 
and  it  almost  always   results  in  social   loss. 

Here,  indeed,  is  where  the  main  superiority  of  the  plu- 
ralistic state  is  manifest.      For  the  more  profoundly   we 

analyse  the  psychological  characteristics  of  its  opposite, 

the  less  adequate  does  it  seem  relative  to  the  basic  im- 
pulses of  men.  And  this,  after  all,  is  the  primary  need 
to  satisfy.  It  was  easy  eOOUgfa  for  Aristotle  to  make  a 
fundamental  division  between  masters  and  men  and  adapt 
his  technique  to  the  demands  of  the  former;  but    if    was  a 

state  less  ample  than  a  moderate-sized  city  that  he  had  in 
mind.    It  was  simple  for  Ilohhes  to  assume  the  inhereni 

badness  of  men  and  the  consequent  need  of  making  gOVern- 

meni  strong,  leal  their  evil  nature  bring  it  to  ruin:  yet 
even  he  must  have  seen,  whai  our  own  generation  has  em- 
phasised, that  the  strength  of  governments  consists  only 


248  THE    PLURALISTIC    mail 

in  the  ideal  <»f  which  t In  \  dispo  It  iras  even  limple 
for  Bentham  to  insist  on  tin-  ruling  motive  of  telf-interesl ; 

but    be   wrote    before    it    had    become    clear    that    altruism 

was  an  instinct  implied  in  the  existence  of  the  herdt    We 

know  at  hast  that  the  data  :uv  more  complex.  Our  main 
business  lias  become  the  adaptation  of  OUr  institutions 
to  ■  variety  of  impulses  with  the  knowledge  that  we  must 
at  all  COftfl  prevent  their  inversion.  In  the  absence  of 
Mich  transmutation  what  must  mainly  impress  us  is  the 
wastage  upon   which   OUT   present    system   is   builded.      The 

executioner,  as  Ifaistre  said,  is  the  corner-stone  of  our 
society.  Bui  it  is  because  pre  refuse  to  release  the  creative 
energies  of  men. 

After    all.    our    political    systems    must    be    judged    not 

merelj   by  the  ends  they  serve,  but  also  by  the  way  in 

which  they  serve  those  ends.  The  modern  state  provides 
a  path  whereby  a  younger  Pitt  may  control  the  destinies 
of  a  people;  it  even  gives  men  of  leisure  a  field  of  pas- 
sionate in 1 1  rest  to  cultivate.  But  the  humbler  man  is 
less  fortunate  in  the  avenues  we  afford;  and  if  we  have 
record  of  notable  achievement  after  difficult  struggle,  we 

are  too  impressed  by  the  achievement  to  take  due  note 

of  the  anguish  upon  which  it  is  too  often  founded.  This, 
it  may  be  remarked,  is  the  touchstone  by  which  the  major 

portion  of  our  institutions  will  be  tested  in  the  future; 

and  I  do  not  think  we  can  be  unduly  certain  that  they  will 
stand  the  test.  The  modern  state,  .it  bottom,  is  too  much 
an  historic  category  not  to  chang*'  its  nature  with  the 
advent   of  new  needs. 

Thovr  new  needs,  it  may  be  added,  are  upon  us,  ami 
the  future  of  our  civilization  most  largely  depends  upon 
the  temper  in  which  we  confront  them.  Those  who  take 
refuge  in  the  irrefutuble  logic  of  the  sovereign  state  may 


THE    PLURALISTIC    STATE  MO 

K>metimefl  take  thought  thai  for  many  centuri<  -  of  medi- 
cal history  the  very  notion  of  sovereignty  nv.i-  unknown, 

I  would  not  seek  unduly  to  magnify  tho>e  far  oft'  t  im« -^  ; 
hut    i!    is  worth  while   to    remember   that    no   thought!    w«  n 

dearer  to  the  hear!  of  medieval  thinkert  than  ideali  <>f 
right  and  justice.    Shrunken  and  narrow,  it  may  be,  their 

fulfillment  often  was;  hut  that  WM  not  because  tiny  did 
not  know  how  to  dream.     Our  finely  articulated  structure 

fa  being  tested  by  men  who  do  not  know  what  labor  and 
thought  have  gone  into  its  building.  It  is  a  crud<  r  t<  il 
they  will  apply.    Yet  it  is  only  by  seeking  to  understand 

their  desires  that  wc  shall  be  able  worthily  to  meet  it. 


M' 


IK    BASIS    OF    VICARIOUS 
LIABILITY* 


h  ■  master  choose  to  giTe  ordi  ri  to  hifl  h  rvant,  no  one 
I  to  understand  irhj  be  should  f>»  held  liable  for 
the  conseqw  noes  of  their  commission.1  Nor  i*  tin-  vnsv  in 
robstance  different  irhen  he  ratifies  hia  servant's  act.  To 
stamp  irhai  u  done  for  him  with  the  sea]  of  his  approval 
is  tacitly,  hut  obviously,  to  accepl  the  act  as  bis  own;1 
and  thai  is  true  no  Less  where  the  ratification  is  implicit, 
than  where  it  is  expressly  made  manifest.  No  one,  more- 
over, deems  it  necessary  to  take  objection  to  liability 
which  is  consequent  upon  a  genera]  negligence.4  I  may 
knowingly  employ  a  clearly  incompetent  person.1  I  may 
consciously  tail  to  provide  proper  means  for  the  perform- 

*  Reprinted  from  the  Volt    Low  Journal.  Decembeij  1916. 
i  Doctor  and  stinhnt,  I.  i\;  Lacs*  a.  Mason  (is7r>>   LO  I  \    J>i; 
Smith  v.  K .  1 1  |  1882)  9  <(>.  B.  D.  840. 

Bishop  v.  Montague  (1900)  Cro.  Ells.  IT,  894;  Padgd  a.  Priest 

(17*7)  2  T.  H.  97  j  I'.ui.ank  d.  Nuttinp  ( lHt-0)  7  c.  B.  J91\  Dempsey 

Chamben  ( 1891 1  154  Mass.  880. 

Go*  a.  O.  N.  it.  Co,  (1861)  8  B.  ft  B.  672  j  Walker  a.  S.  r    By, 

(  1870)  B  ('.  P.  640. 

i  w.-in  t  .11  v.  Pookj  (1841)  G  CI.  &  F.  oio;  Dansey  a.  EUcfaardeoa 

(iK.-,t)  :*  El  &  BL  Hi:  Cos  a.  Centra]  Vennool  By.  Co,  (1898)  no 

Mn  s.    I."'. 

Catler  a.    Morrison    (inio)    48    Pa.    Bop,   Ct   ■■'■.    Martin   a. 
Richards  (1892)  IM  Haas.  88L 

280 


BASIS    OF    1 1<  kRIOUS    II  \i;iui  I        J251 

Mice  of  the  allotted  work*  I  do  •  y  fail  t<>  <^i\ r  m\  lervant 
information  srhich  I  know  to  !><•  essential  t«>  Hi.  right 
completion  <>f  lii^  task.'     I  may  fail  to  take  adequate  p 

<   lotion  againsi   thr  commission  <»f  a  tori   in  my  |>ivs< n< 
In    cast's   such   as    these,   where    the   matter    is   <lm<tlv    in 

rolved,  it  is  essentia]  t<>  any  scheme  <>f  law  thai  h<'  should 
be  lii  Id  liable  for  such  damage  as  liis  servant  may  can 

The  problem  is  far  different  where  express  authority 
<!<>•>  not  <\ist.  a  state  in  which  it  i>  an  accepted  <!"<• 
trine  thai  the  sins  <>f  the  servant  maj,  even  when  on 
authorized,  !><•  visited  upon  the  master,  has  won  ■  toler- 
able respect  for  its  law.  Yei  the  thing  is  sufhcientljf 
novel  to  be  worth  some  careful  investigation.  In  no 
branch  of  legal  thought  are  the  principles  in  such  sad 
confusion.  Nowhere  has  it  been  so  difficult  to  win  assent 
to  what  some  have  deemed   fundamental   dogma.'     Nor 

i>    this   all.      What    principles-   -even    if   of   a    conflicting 

kind  —  have  yei  emerged  are  comparatively  new  in  char- 
acter. They  do  not  go  hack  to  that  venerable  time  win  n 
Richard  I  endowed  the  Anglo-Saxon  race  with  legal 
memory.  There  is  no  trace  of  them  in  Bracton.1'  The 
)fear-Books  do  not  aid  us.       Coke  —  it  seems  marvelous 

«  Mitchell  v.  Boston  ft  Maine  Et  R.  Co.  (1894)  68  N.  H.  91 
i  Fletcher  v.  Baltimore  ft  P.  H.  R.  Co,  (1887)  168  U.  s.  I 
*  M  Laogfalln  v.  Prvor  (1842)   v  Mm   ft  G.  58, 

o  See  Mr.  Baty's  fi«  rev  attack  in  his  brilliant,  if  perverse,  VieoHamt 
Li'thiiifij  (1915).  Dean  Thayer  in  tin-  posthomoap  paper  published  In 
29  Harv.  L.  R#v.  BO]  hi  ted  some  Interesting  possibilities  of 

fntnrr  development. 

io  Cf.  Bracton  ft'.  115b,  124b,  158,  17  la.  ITSb,  204b, 
ii    Prof.  WIgmore  in  7  Ilnn\   I  .   /.'.;■.  B15  has  cited  some  evidence 
to  the  contrary,  hut   it    is  hardlv  decisive.    The  cases  which   fore- 

• 

shadow   the  modern   doctrine  arc  conceived   with   special   duties     I 
Cowell,    Institute*,   p.    207 J    Southern    r.    How.-.    Cro.    JaC     168]     Nov. 
Maxim*.  Ch.   IV.      For   the   general    rule,   m  11.-,    ./  mint,   (it. 

Action  on  the  Case,  pi.  95;  Waltham  p,  Mulirur  (1806)   Moon.  I 


BASIS    OF    VICARIOUS    LIABILITY 

enough —  is    silent    upon    Hum;   or,    at    any    rate,    it    i>    a 

different  talc  be  has  to  tell.  Our  theories  come  in  with 
the   Revolution  of   L688,  and   thej  bear  tin-  impress  of 

a    single,   %  in  i*l    personality.      So    that    if    they    ha\e   a    his- 

turv,  it  is  short  enough  to  raise  deep  questions.  And, 
indeed]  it  must  be  admitted  that  the  problems  inherent 
in  our  principles  are  very  formidable.  There  is  no  field 
of  law  into  which  tiny  <lo  not  ieem  to  enter.  Contract) 
tortj  negligence       in  all  of  these  they  have  their  word 

to  saw  and  it   is  a  word  of  growing  import    for  our  film  . 

The  age  has  passed  when  each  man  might  bear  untroubled 
the  burden  of  bis  own  life;  today,  the  complexities  of 
.social  organization  seem,  too  often,  to  have  cast  us,  like 
.some  Old  Man  of  the  Sea,  upon  the  •boulders  of  our  fel- 
lows.    Where,  above  all,  the  men  of  Mediaeval  England 

gloried    in    their    own    Labor,    we,    or,    at    hast     many    of 

us,  take  pleasure  in  dividends  that  have  been  vicariously 

earned.      It    is   an   age   of   abundant    servi  Vast    num- 

bers are  working  for  other  men  and  obeying  their  com- 
mands. Service  implies  action.  A  MU  B  to  perform 
Mine    work.      When    B's    work   entails    less    to    (\    what    is 

the  relation  of  A  to  the  transaction?  We  have  maxims 
and  to  spare  upon  this  question.     Respondeat  superior 

is  an  argument  which,  like  David,  has  slain  its  tens  of 
thousands.      Its    seeming    simplicity    conceals    in     fact     a 

rentable  hornet's  nest  of  stinging  difficulties.     It  is  the 

merest  dogma,  and  in  no  lense  explanation.  For  while 
everyone  can  see  that  the  master  ought  to  answer  for 
acts    he    has    authorized,    why    should    he    be    liable    either 

where  no  authorization  can  be  shown,  or  where  express 

prohibition  of  an  act    exists?      Latin   may   bring  us   com- 

11   Cf,  Dr.  Bstj*l  remark  that  tin.-  modern  law  is  injuring  Industry, 
l  p.  cit.,  p.  154. 


BASIS    OF    VICARIOUS    LIABILITY        258 

fort  but  if  xs i  1 1  noi  ioIvc  <»ur  problems.     Nor  is  t!,. 
improved  if  we  substitute  qui  facii  (ilium  facit  j><  t  n   in 

it  ^  place*  Like  mosi  of  its  kind  that  untiijue  l<  ^  ml  is 
simply  a  stumbling  bloek  in  the  pathway  of  juristic  1"'(>^- 
n  is.  It  is  one  of  those  dangerous  generalization*  which 
shivers  into  untruth  upon  the  approach  of  fact.  Where 
another  does  m>  more  than  fulfil  your  command!  you  do 
irith  accuracy  be  said  to  act.  That  is  as  legally  clear 
as  it  is  morally  unimpeachable,  Bui  whal  of  cases  where 
your  servant  performs  acts  incidental  to  your  bush* 
without  express  authority  for  their  performance?  Whit 
of  acts  done  iii  positiye  disobedience  to  command?  Can 
we  be  said  actually  to  have  performed  acts  which  at  first 
acquaintance  ire  are  anxious  to  repudiate  ?     Is   Parker, 

for   instance,   to  sutler   if   a   subonlinat «•  officer,   who   hap 
pens    to   be   a  genius,   wilfully    disobeys   orders,    and    puts 

his  glass  to  an  unseeing  eye?  1J  What  is  to  occur  when 
the    servant's    action    is    colored    by    personal    motiw 

Clarity,  it  is  obvious,  begins  now  to  pale  into  that  ob- 
scurity where  what  is  most  visible  is  the  natural  con- 
fusion   of    life.      Our   vaunted    simplicity    perishes    before 

the  realism  of  the  event.     We  have,  it  is  clear,  to  go 

further   than   the   jingles   of   legal   convenience    if   we   are 

to  arrive  at  a  working  hypothesis;  unless,  indeed,  we 
accept  the  subtle  Pyrrhonisms  of  a  distinguished  author- 
ity, and   assume  at    the  outset    a   fundamental   disharmony 

between  reason  and  law.14 

13  Though  of  course  Parker  hoped  —  urul  felt  —  that  Nelson  would 

disregard  t  •  i  ^  generous  caution 

M   Mr.  Justice    Holmes   in  r,   Hnrv.    I..   I!>v.   11.     Cp.   PaleV,   IfOfnJ 

PkOotopky,  Bk.  in.  Pt  i.  Ch.  li:  These  determination!  itaad,  1 

think,  ratlur  upon  the  authority  o\  the  law  than  upon  any  principle 
ui   natural   justice." 


254       BASIS    OF    VICARIOUS    LIABILITY 


\\ .    shall   hi'  less   pessimistic.     Our  skepticism   is   the 

cons.  (Jin  iii-c  of  ;i  loo  nr,;ii  reliance  upon  the  historic 
in*  tliod.     \\v  lia\<-  laid  insistence  rather  upon  the  origini 

of    law    than    upon    the   ends    it    is    to    serve'  '      When    the 

historv  of  tin'  modern  extension  of  vicarious  liability 
is  examined,  no  one  can  question  the  lii^rh  degree  of  its 
mysteriousness.1'  We  may  barely  guess  what  motives 
underlay  the  Btriking  and  decisive  dicta  of  Chief  .Justice 

Holt  in  a  series  of  cases,  the  more  difficult,  in  that  they 
were  not  adequately  reported,17  but  largely  gained  their 
Btrength  from  remarks  made  obiter,  and  from  that  vivid 
imagination  which  enabled  Lord  Holt  to  suggest  compel- 
ling analogies.1'  We  see  signs  of  a  struggle  with  the 
mediaeval  doctrine  in  the  partial  persistence  of  the  old 
ideas.  Yet,  by  1800,  the  novelties  have  forced  their 
way  to  acceptance.80  The  rare  genius  of  Willes  and 
Blackburn  makes  of  them,  in  some  sort,  not  the  least 
vital  contribution  of  nineteenth-century  jurisprudence  to 

is  Cf.    Mr.   .Justice    Holmes'    impressive   words,    10  Ilarv.   L.   Rev. 

407  tr. 

!••  See  Dean  Wigmore  in  -l  Srlrct  Bttayt  in  Antflu-.lmerican 
/>":.-,  474. 

11  Cf.   Mr.   Baty'fl  remarks,  op.  cit.  23   v. 

is  TuH.erville  v.  Stampe  (Ki«»7)  Com.  159,  1  Sulk.  18,  Ld.  Itaym. 
264;  Iflddkton  7-.  Powler  (1699)  I  Salk.  282;  .Jones  v.  Hart  (1G99) 
2  Salk.  Ul,  Ld.  Kaym.  786;  Lane  v.  Cotton  (1701)  12  Mod.  489; 
Hern  7-.  Nichols  (17<>9)    Hol1    W2,  1  Salk.  289. 

it  EUndk  v.  Deane  (17<>1)  2  Lut.  1496;  Naish  r.  East  India  Co. 
(1721)  Com.  121. 

Cf.  tin-  change  between  Nalsb  and  Rush  7-.  Stetmnan  (1799) 
1  I'.,  ft  I*.  104.  Blackstone  in  i  Oomm.  129  is  raggi -stive  for  the 
trend  of  opinion  towards  the  middle  of  tin-  centnrj. 


BASIS   OP    VICARIOUS    LIABILITY 

the  growth  of  Anglo  American  law.  II  becomei  poa- 
rible  to  assert  that,  special  authority  apart,  the  dul 

assigned    to   a  servant    j;i\e   him    tin-    power    to    hind    his 

master  in  such  contracts  aa  come  within  the  scope  of  his 
employment*81  But  the  Ian  goes  further,  and  makes  the 
master  generally  liable  for  his  servant's  torts  so  long 

as    they   are   fairly   and    reasonably    to    be   traced    to   his 

service; u  though  no  burden  is  thrown  upon  the  employer 

where  no  such  connection  can  be  shown. "^  When  the  act 
committed  is  a  crime,  authorization,  important  statutory 
exceptions  apart,  is  still  necessary;  for  the  law  still 
places  motive  at  the  basis  of  criminal  liability.2.  Yet, 
even  when  these  limitations  are  considered,  the  scope  — 
as  Jessel  thought  too  vast20  —  of  this  extension  is  indeed 
remarkable.  Almost  within  a  century  the  doctrines  of 
hallowed  antiquity  are  reversed.  No  attention,  as  it 
seems,  is  paid  to  historic  antecedent.     The  whole  change 

21  The  fundamental  CBSes  are  Seymour  v.  Greenwood  (lHfio)  (i  H. 
&  N.  359;  (1861)  7  Und.  355;  Goff  V.  G.  N.  R.  Co.   (1861)   8  B.  &    I 
672;  Limpufl  r.  Gen.  Omnibus  Co.  (1867)   1   H.  &  C.  626;  Berwick  r. 
Joint  Stock  Bank   (1867)  2  Ex.  259;  Poulton  v.  L.  &  S.  W.   R  I 
(1867)  2  Q.  B.  D.  53k 

22  See  Fitzherbert,  Natura  Brevium,  120b;  Doctor  and  Stwhnl. 
II,  xlii;  Noy,  Maxim*,  p.  58;  Nickson  v.  Brohan  (iTio)  in  Mod.  ii<>; 
Hibbsr.  Ross  (1866)  1  Q.  B.  D.  531;  Wattean  v.  Penwick  Ca  ( 1892) 
67  L.  T.  N.  S.  831;  Langan  r.  (I.  \V.  By.  Co.  (1871)  :U)  L.  T.  N.  S. 
173,  especially  the  remarks  of   Bramwrll,   B. 

23  Limpus  v.  Gen.  Omnibus  Co.,  nt  supra:  Stevens  v.  Woodward 
(1881)  50  L.  J.  m  B.)  231;  Over  r.  Monday  [1806]  l  Q.  B.  742. 

24  MeManus  v.  Criekett  (1800)  1  Bast,  106  j  Croft  r.  Alis,)n  (1821) 
I  B.  &  Aid.  590;  Stevens  v.  Woodward,  a!  wpra,  818;  Ulen  r. 
L.  &  S.  \v\  u.  (1870)  6  Q.  B.  I).  85]  tbrahami  v.  n.-akin  [1801] 
1  Q.  B.  516. 

25  R.  r.  Huppins  (1730)  2  Str.  882;  Bnppc  r.  Whitehead  [1892]  2 
Q.    B.  355. 

2"  Smith  r.  Keal   (1882)  9  Q.  B.  D.  351. 


_  ft       BASIS    OF    \  LCARIOl  S    LIABILITY 

is,  n  Mm-  may  urge,  outstanding  proof  <>f  <»ft  contro- 

\.iti.l    fact    that    judges   cm    and   do    make   law.       Clearly, 

^oo(l  reason  is  essential  for  so  striking  a  revolution  of 

opinion. 

II<n    is  the  crni  of  the  problem;  for  it  mini  be  Ad- 
mitted,  that    m>    far   in   lc^al    theory    if   u<    have  a   mul 

plicity  of  theories,  none  baa  brought  sridespread  Batia- 
faction.  Some,  indeed,  Are  frankly  impossible.  It  i^ 
not  wty  helpful  to  be  told  by  authority  so  distinguished 
ai  Parke,*1  as  Alderson,*1  ai  Cranworth,*1  that  am  facii 

per  nl'utm  is  the  basis  of  the  liability;  for,  as  ire  have 
leen,  that,  in  strict  fact,  can  be  true  only  irhere  the 
masti  p'a  as*  at  is  proved.  The  <juasi  icientific  mind  of 
Lord  Brougham  ascribed  the  doctrine  to  the  fact  that 
"by  employing  him,  I  set  the  irhole  thing  in  motion,  and 
what  he  docs,  being  done  for  my  benefit,  and  under  my 
direction,  I  am  responsible  for  the  consequence  of  doing 
it"  1f)  —  a  niggardly  determinism  which,  from  its  con- 
cealed  fictions,  serves  only  to  darken  counsel;  and  it  has 
the  additional   demerit   of  being  Logically   as   extensible 

to  tic  work  of  an  independent  contractor,  where  vicarious 
liability  does  not  ordinarily  apply,  as  to  that  of  a  servant, 

or  agent  irhere  it  does.  .Mr.  Justice  Willes,  of  whose 
opinion  Mr.  Baty  seems  to  approve,  :  grounds  our  dogma 

on    the    fact    that    "there   OUght    to    be    a    remedy    against 
me    person    capable    of    paying    damages     to    those    in- 

27  Qoannaa  r.  Burnett  (ism)  r,  If.  &  \v.  BOO. 

2«»   Hutrliirw>n  r.   York,  Newcastle   By.  ('«».   (1900)   rt   Fx.  848. 

29   Bartondnll    Coal    Co.   :•.    Uriel    (is.Ts)    8    Ifaeq.    -''>"'i. 

ao  Duncan  a  Plnlatei  (1889)  <i.  ft  1    B64,  910.    I  ought  to  add 

that    this    theory    MODI    to    Command    the    ■e-.-nt    of    Dean    WlgmOfe, 

3  Srl.rf    Ettmfi  in  .1  n')l>>.f  nx  rir.in    I    <  ><  .•    l'arke's  criticUm 

of  it  in  Qnarman  r.  Banett,  ut  supra. 

31    Baty,  oj»,  cit.,   p.    I 


basis    OF    VICARIOUS    LIABILITY        867 

jurid."        Bui  it  is  cleai  that   if  this  is  t In   path  the 

law  ou^lit,  as  a  g*  neral  rule,  to  follow,  it   is  ^oing  to  lia\«- 

Mnall  concern  with  justice*  The  great  Pothier  ascrib  I 
its  force  to  tli»  necessity  of  making  nun  careful  in  the 
■election  of  their  •enrants;ta  ye!  it  is  char  that  in  the 
vast  majority  of  cases  that  have  arisen,  no  such  negli- 
gence has  ever  been  alleged.  Nor  trill  anyone  dream 
to  dav  of  accepting  the  new  of  the  unctuoui  Bacon,  that 

tin-  liability  arises  from  our  failure  to  do  our  o\s  n  work 
—  a  failure  permitted  by  an  indulgent  law  on  tin  con- 
dition that  ire  bear  an  absolute  responsibility  for  such 
delegation.  '  Sir  Frederick  Pollock  —  with  far  more 
reason  —  urges  that  ;i>  all  business  is  a  dangerous  enter- 
prise, boldness  must  pay  its  ]>ri<  The  "implied  com- 
mand''  theory    has    nothing   rational    about    it;   it    is   one 

of  those  dangerous  and  disagreeable  fictions  which  persist 

M  a  method  from  a  primitive  stage  of  law.38  And 
Maitland  has  slain  the  equally  hopeless  fiction  of  an 
imaginary  identification  of  master  and  servant  derived 
from  the  jurisprudence  of  Home.3'  Nor  is  the  opinion 
of  Lord  Holt  —  which  derives  a  special  importance  from 
its   historical   setting  —  in  any   way   more  adequate.     It 

32  Lhnpus  r.  Gen.  Omnibus  Co.,  ut  ntpra.  One  has  a  troubled 
feeling  th.it  Maitland  might  have  endorsed  this  dictum,  2  P.  &. 
11  688. 

33  Pothier,  Obligation*  (trans.  Evans),  p   19 

84  Abridgment  (ed  i^;_'),  at.  Master  and  Servant  (K  ),  IV,  386. 

3">  Set-  his  paper  on   Kmploycr's   Liability    in  hi     /-/</*  un  J% 
pru<l>  met  end  Et hies. 

■■'■'■    Below,   See.    IV. 

87  P,  ft  If,  II,  ,r»:50.  I  siy  this  with  deep  respect,  for  Mr.  Justice 
Holmes  has  given  his  weighty  support  to  this  theory,  t  //  WV,   I     /> 

't.and  B  //.//•:     /      /.-:      1    38]  hut  as   Wigmmv   (Ofh  rit.  688  n.   1) 
has  pointed  out.  his  illustr.it ions  are  mainly  derived  from  \V-    fc,  £    m 
boUogrwpkg,  of   Which   the   relation   to  the  civil   law   makes   it    at    once 

i  b  pert. 


858       basis    OF    VICARIOUS    LIABILITY 

iii>. I  to  him  limply  ■  principle  of  natural  lattice  that 
where  one  or  two  innocent   personi  mffer  through  the 

fraud  of  ■  third,  the  suffering  must   be  borne  l»v  the 

mailtfT   whO|    in    employing    that    third    party,   cnahled    the 

fraud  to  be  committed*  The  new  is  little  more  than 
that  later  Adumbrated  by  Lord  Brougham,  though  it  is 
more  plausibly  arrayed*  All  torts  are  not  deceits,  and  it 
would  he  difficult,  for  example,  to  apply  such  a  test  to 

the   situation    in    /,/////    \.    Xurt h-\Yistcrn    !{//.   Co.,   where 

the  defendant's  gatekeeper  invited  the  plaintiff  in  entire 
good  faith  to  pass  over  a  railway  crossing,**  or  where  a 
tramway  conductor  honestly,  l>nt  mistakenly,  suspects 
a  passenger  of  tendering  a  counterfeit  half  sovereign,  and 
gives  him  in  charge,40  Lord  BramweU  gave  np  tin-  law 
altogether.  "I  have  never  been  able,"  he  told  the  Parlia- 
mentary Committee  of  1876,41  4*to  see  why  the  law  .should 
be  so  —  why  a  man  should  be  liable  for  the  negligence  of 

his  .servant,  there  being  no  relation  constituted  between 
him  and  the  party  complaining."  Nor  did  Mr.  Justice 
rVright    alt. nipt    any    explanation    of    the   law    beyond   its 

unii  ersality/ 


4  2 


III 

That  uniyersality  is  notable.     The  law  of  a  business 
world    is    not    made    for    amusement.      Some    solid    reality 

there  must  have  been  in  the  reasons  for  its  acceptance; 

88   In   Mem  V.  Nichols,  itl  xii/ira. 

M   (iss,,)    L.    |{.    1  Q,   B.  -'77. 

40  Furlong  v.  South  London  Tramway!  <'«>•  (issD   t  J.  P.  BStj 
cf.  Char*  tun  d,  London  Tramwayi  Ca  (1888)   t  T.  L  K.  830. 
<i  (1867)  Cd  2186,  p.  M. 
•i  Bsty,  "/'   r,f-  p-  100s.    Pot  i  rateable  general  commentarj  on 

the  tendencies  <>t'  tin-  modern  law,  cf.  Channont,  /..      /  nin*furm<ition.i 
<lu  droit  civil,  chap,  \\  i. 


BASIS    OF    VICARIOUS    LIABILITY       859 

and  its  \<r\  persistence  in  the  fa©  of  bitter  criticism 
is  Itself  suggestive.  We  make  men  pay  for  faults  t; 
have  not  committed.  It  seems,  on  the  surface,  extras 
dinarj  enough;  unlesSi  indeedf  u<  are  to  conclude  with 
Lord  BramweU  thai  the  whole  thing  is  nonsensical,  or 
\\i\\\  Sir  Frederick  Pollock  thai  it  is  fh<-  entrance  fee 
payable  for  admission  to  ■  dangerous  trade.  Hut  the 
rules  of  law  have  usually  some  purpose  behind  them. 
.Mm  like  Holt  and  Blackburn  are  lomething  more  than 
whimsical  innovators.  Tin-  ha  .h  of  our  principles  is 
to  !»«•  found  in  the  economic  conditions  of  the  time. 
Business  has  ces  ed  to  !»«•  mere  matter  of  private  con- 
cern. A  man  who  embarks  upon  commercial  enterprise 
is  something  more  —  even  in  the  eyes  of  the  law44  —  than 
a  gay  adventurer  in  search  of  ■  fortune.  The  results 
of  bis  speculation  are  hound  to  affeci  the  public;  and  the 
state,  as  the  guardian  of  its  interests,  is  compelled  to 

lav   down   conditions   upon    which   he  may    pursue  his   pro- 
fession.     The    emphasis   does    not    lie,    as    Sir    P,    Pollock 

has  suggested,  in  an  ipso  facto  danger  in  business,  but 
in  the  removal  of  certain  tones  of  faci  without  the  sphere 

of   ordinary    litigation.      The    basis    of    the    rule,    in    fact, 

is    public   policy.     One   know-,   of   course,   that    "public 

policy"  is  a  doctrine  for  which  the  judges  ha\e  cherished 

no  special  affection,     "I,  for  one,*1  Baid  Burrough,  J./ 

I  hope  to  trace  in  ■  later  paper  toe  early  history  of  n  /•  m 
■  Hot, 

<«  Cf.  Mr.   B.   A.   Ailli-r's  stimuli!  big  papers   iii   38   and   29    //"/-:. 

/..  Ban 

m  Richardson  v.  IfeUisfa  (1834)  9  Blag.  252 j  ef.  WtBk  9.  Smith 
(1889)   '-'i   (li.   I),  par  /ataal  at   i>.  266 1   Res  v.   Hampden   (M 
:*  s.  T.  1296]  WUktf  Can   (1768)  19  s.  T.  1113  par  Mansfield,  C.J.< 
and  above  all  Bgerton  v.  Brownlow  (i^">5)  *  H.  l<  c  i  /"  r  Pollock, 
C    B. 


260       BASIS    OF    VICARIOUS    LIABILITY 

''protest     .     .     .    against    ar^nin^   too   Btronglv    UpOD    pub 
lit*   policv;   il    is   a   mtv    unruly   horse,  and   P/hen    you  ^r' t 
astride    it,   you    never    know    where    it    will    carrv     \oii.       It 
may    had    miii    from    the    sound    l.iu.      It    is    n<ver    argued 
Upon    at    all    hut    vv  Inn    other    points    fail."       Hut    BUCh    an 

attitude  is,  in  truth,  but  the  prophetic  anticipation  of 
the  Victorian  distrust  of  governmental  interference.     It 

is    becoming    more   and    more    clear    thai    We    mav    not    be 

content   with  an   individualistic  commercial   law/      Just 

that    individualism    was    the    natural    reaction    from    the 
too    d  net    and    local    paternalism    of    mediaeval    policy  — 

perhaps  aided  bv  the  inherent  self-centrednesa  of  Puritan 

thought41  — so    we    are    compelled    to    turn    away     from 

every  conception  of  the  business  relation  which  does  not 

lee  the  public  as  an  effective,  if  silent,  partner  in  every 
enterprise.  That  is  the  real  meaning  of  Factory  arid 
Employers1  Liability  Acts  as  of  compulsory  education, 

and   the  establishment  of  a  minimum  wage.      It   is  simply 

a  Legal  attempt  to  see  the  individual  in  his  social  context. 

That)  at  which  we  industrially  aim,  is  the  maximum  pub- 
lic good  as  w  e  see  it.  In  that  respect,  the  employer  is 
himself  no  more  than  a  public  servant,  to  whom,  for 
Bpecial   purposes,  a   certain  additional   freedom  of  action, 

and  therefore  a  greater  measure  of  responsibility  has 
been  vouchsafed.*1     If  that  employer  is  compelled  to  bear 

««  Sec  the  striking  remarks  of  Mr.  .Justice  Holmes  in  In  Hn,v. 
I..  /,'-:  107,  167,  .incl  Ml  ipeecfa  to  the  Harvard  Law  Review  Asmi- 
ehtioii  on  Feb.  18,  1918,  in  8p**ek*$  (10n)  |>i>.  <>S  Ii)_>;  above  all 
bis  remarks  in  I.oelmer  V.  N.  Y.  (1904)    196  U.  S.   15,  7.".  (i. 

it  Bee  Levy,  Beomomie  lAbtrmHsm,  poMfm,  and  the  last  chapter  of 
Oooehj  PoJtt irni  Tkomghi  from  Bueom  to  WmHfmm.    Pot  the  way  in 

uliidi  itste  rruailat  inn  hi  become  e.-.eiilial,  r\'.  I'ir,  l.<  •linlntinu  In- 
dustrial.    (  inns)    ChS.   3   .ilid    7. 

Cf,     Duguit,    Tram  for  mat  ions   du    Droit    Public.   I  ipedsUj   ( 
tod  7. 


HASis    OF    VICARIOUS    LIABILITY       261 

the  burden  of  his  servant*!  torts  even  irhen  he  ii  himself 
personalis  nrithoui  fault]  it  la  because  in  ■  locia]  distribu- 
tion of  profit  and  loss,  the  balance  of  least  disturban 
k  ems  t hereby  best  to  be  obtain*  d. 

What,  then,  wv  have  to  ask  ourselves  i-  irhether  the 
positive  benefits  to  l>«  derived  from  tin  present  rule  <l«» 
cot   in  fact  outweigh  the  hardships  it   maj   on  occasion 

inflict.      We  cannot    run  a  human   world  on  the  principles 

of  fonnal  logic.     The  test  of  our  rule's  irorth  must,  in 
fact,   be   purely   empirical    in   character,     We    have   to 

.study  the  >ocial  consequences  of  its  application,  and  d< 
duce  therefrom  its  logic.  We  have  to  search  for  the 
mechanism  of  our  law  in  life  as  it  actually  is,  rather  than 
h't  the  life  wc  live  to  a  priori  rules  of  ri^id  legal  system. 
The  way  in  which  the  modern  conception  has  grown  is, 
in  fact,  very  comparable  to  the  nut  hod  by  which  special 
liabilities  arc  attached  to  innkeepers/'1  to  those  who  hs 

wild  animals,'"   to   those  who   start    a  fire,      to   those  who 

engage  as  public  carriers.  '     The  meaning  of  the  legal 
sword  of  Damocles  forged  for  their  penalization  is  rightly 

49  (.'(.  the  remarks  oi  If.  Sainchelette  In  his  RetponribUUl  <i,  in 
dnrnn'ii,  p.  124i  La  re  ponsibilite*  du  fail  dTantroJ  n*<  t  pi  one 
fietioii  irmntrc  par  la  lol  positire.  cY.t  mi-  exigence  de  Pordre 
wcJaL 

Wh.it  ire  hare  in  fad  to  work  out  for  rfcarious  liability  are  the 
prindplea  Indicated  bj   Dean  Pound  in  his  various  papers,  especially 
in  :»  Cok  L.   &*o.  889;  8  Ibid.  <i<>~»;  24  Hart    l     R ■..   191;  IB  U 
189.     \   Lr".»(i   Instance  dt    smli  application    ii    Prof.   Prankfarti 
paper  in  29  nTorv.  L.  i:>v.  86a 

a*  This  soda]  conception  i^  Interestingly  prominent   in  the  ju< 
tn.iit  of  Crompton,  J.,  in  Av.-.ni.  •■.  Dance  |  1866)  84  J.  P.  I  '■' 

Fletcher  v.  Rylanck   (1886)    I    Ex.  268,  B   II.  I..  880;  and 
thereon  fix   commeni  of  Dean  Hiayer  In  the  article  cited  ai<<>\< 
■Jones  r.  FestinioL'  Ry.  Co   (1868     I      R,  B  Q.  B.  I 

M    Ilolni'  ntwn   LaWj  Chap,  v.  and   !'.<   il«    in  Q     In  >l<-  .1  m>  riran 


>2i\2       B  ISIS    OP    \'l<  UUOUS    LIABILITY 

tn  be  round,  not  in  the  particular  relation  they  bear 
lo  their  charge,  hut  in  the  general  relation  to  society  into 
which  their  occupation  brings  them.  En  Midi  an  a. [net 
as  ihi^  it  iii.in  h«  urged  thai  Holt  found  good  i «  i -on  for 
the  incisiv<  « ■•  rtitude  of  nil  dicta  in  an  age  irhich  saw 
enormous  a  growth  of  corporate  entcrpri  e.  It  sras,  lays 
Dean  Wigmore,  "i  conscious  effort  to  adjust  the  rule 
of  Ian  to  the  expediency  of  mercantile  affairs.91  Sons 
thing  of  this,  if  iti.1%  he  urged,  was  perceived  by  Benthaxn 
in   a   passage   irhich   lias   not    perhaps    received    its   d 

meed    of    attention.      "The    obligation    imposed    upon    the 

master,*1  he  saj  i,  "acts  as  a  punishment,  and  diminish*  i 
the  chances  of  similar  misfortunes.     II<    is  interested  in 

knowing    the    character,    and    watching   OVer    the    conduct 

of  them  for  whom  he  is  answerable.  The  Law  makes  him 
an  inspector  of  police,  a  domestic  magistrate,  by  render- 
ing him  liable  for  their  imprudence.94  Even  when  we 
allow  for  the  curiosities  of  the  author's  characteristic 
phraseology,  it  is  yet  clear  thai  he  has  seised  upon  an 
important  truth.     If  we  allow  the  master  to  I"    careless 

of    his   servant's    torts    We    lo8€    hold    upon    the   most    valu- 

able  cluck  in  the  conduct  of  social  life. 

The  real  problem  in  vicarious  liability,  in  fact,  is  not 

o   much   the    rectitude  of   its   basal    principles,   as    the 

degree  in  which  they  are  to  he  applied.  •     Nor  can  we 

anticipate    the    manner    in    which    that    problem    IS    to    DC 

lolved.     What   musi   strike  the  observer  in  the  Btudy  of 

55  Op.  rif.   TIT.  B86.       \nynnr  who  rr.oU    ProfeSSOI  Scott'fl   ffiffory 

Joimt  Btocl     Companion    In     I?,.'')    will    realize    the    forCC    of    fhis 
diehmi. 

I'nii.rt,,/  Work*,  T,  B68.    'I'lif  passage  occurs  in  Mi  Principles 

of  Penal  I  nv. 

<   t.    Prof.    Frankfurter's   remarks   in   regard   to   labor  legislation, 

1 1  an:    L.   /.'.i.  Ml. 


BASIS    OF    VICARIOUS    LIABILITY       268 

1 1 1  •  -    «  II    that     <  arh    is    in    itself    a    separate  the 

employer    of    a    railway    conductor    whose    luibif     it     i->    to 

ki>^  the  female  passengers  of  pleasing  app<  aramc  ■'"  mibi 
be  dealt  uitli  differently  from  ■  bank  of  which  the  cashier 
fraudulently  induces  a  customer  to  accept  certain  bills.  ' 
"Each  d  « ."  ssvya  Professor  Frankfurter,'  "must  be  de- 
tennined  by  the  facta  relevant  t<>  it  .  .  .  ire  are  deal- 
ing,   in    truth]    not    with    a    question    of    lau    hut    uith    the 

application  <>f  an  undisputed  formula  t<>  a  constantly 
changing  and   growing  variety   <>f  economic   and   social 

fs.       Bach  Case,  therefore,  rails  for  a  new  and  distinct 

consideration,  not  only  of  the  general  fact-,  of  industry, 
hut  of  the  specific  facts  in  regard  t<>  Hie  employment  in 
question."  The  i>>ue  in  vicarious  liability  is  not  dill, 
cut  from  that  in  regard  to  labor  legi  lation.  Just  as  our 
conception  of  the  constitutionality  of  statutes  will  depend 
upon   the   contemporary    interpretation   of   liberty,'1    w 

the  content  of  the  liability  enforced  at  any  given  moment 
upon  a  master  for  his  servant's  torts,  nnisl  lx*  shifted  to 
tit  the  new  facts  it  will  continually  encounter.  It  is 
not  a  very  serious  objection,  in  this  age  when  incorpora- 
tion lias  become  but  a  formal  informality,  to  urge  that 
the  growth  of  the  doctrine  i>  a  dangerous  blow  aimed 
at    the    stability    of    property.'         The   doctrine    will    gTOl 

r-    Croaker  v.   Chicago  ,\    \.    W.    Rj.   Oft    17    Am    Rep.  tf   I 

Mackaj  v.  Com.  Bank  of  \.  B.  (is?t)  I.    \i.  r>  i\  c.  :;-»l 

«o  Op,  cit.  p,  889. 

ii.  Pound,  Liberty  of  Contract,  is  VmL   I  n    Journal,  180,  and 
the  argument  of  Prof.  Frankfurter  In  Bunting  v.  Oregon  (1916)  ro- 
printed   bj  t h«-   National  Consumer  '   League   In    I '■■    I   '••    for 
Skoriof    Workday,   i>p.   *'  Iff.    Si  o   the   opinion    In    Holden 

Hardy  (1897)   189  U.  S  ind  the  admirable  remarki  of  M.  Pic, 

"/'.  rit.  pp.  ."I  |  8,  The]  sre  concept  exact!)  ImOar  t«»  these  irhich 
I  believe  to  ii<-  si  tin-  base  of  ricariou    liability. 

«2  Baty,  op.  ri/.,  [66. 


2(>4       BASIS    OF    VICARIOUS    LIABILITY 

or  ruiitr.it  t  according  a^  th<   facts  to  which  it  In  applied 

in   to   warrant    growth  <>r  contraction*      It    will   have   in 

new,  not  the  history  thai  ii  to  be  justified,  hut  the  end 
thai  is  to  be  attained*  It  ^^ i  1 1  let  the  future  take  care  <>f 
itself  l>\  protecting  it  against  the  invasion  of  dogmas 
which  grow  painfully  antique.  It  frill  strive,  in  fact,  to 
make  elastic  thai  bed  of  Procustei  In  which  the  client  of 
law  too  often  takes  bii  rest*  If,  as  Best,  C.  J.,  i 
niarktJ,'  our  law  is  to  be  "bottomed  on  plain,  broad 
principles,"  it  is  well  to  tee  thai  they  do  nol  also,  even 
though  unconsciously,  include  its  superstructure.  For 
each  age  has  to  begin  anew  its  legal  thinking, 

IV 

The  problem  of  scope  of  employment  °4  has  become 
largely  confused  by  the  efforts  of  the  courts  to  provide, 
somehow  or  other,  a  tesl  of  negligence  on  the  part  of  the 

master.  Thus,  masters  are  to  be  held  liable  for  their 
servant's  torts  when  the  latter  are  acting  wfor  the  ma- 
ter's benefit"  '  when,  as  Beems  to  be  assumed,  he  is  less 
careful  than  we  may  demand  —  or  in  such  wise  that  a 
probable  authority  would  from  the  nature  of  the  case 
have  been  given*'  —  a  fiction  of  implied  command  being, 
so  far  as  one  can  see,  relied  upon.*'     It  seems  tar  easi<  r 

•  >  Stmtlur  r.   Barf   (1828)   r>  Blng.   186,  158. 

64  Mr.  Baty,  in  Chs.  S  7  of  his  Vicarious  Liability,  has  provided   i 
perfect   mine  of  admirable  commenl  on  the  caaea,  to  which   I   am 
greatly   Indebted—  though  it   is  to  be   remembered   thai   be  ento 
alv.  .  ■,     from  the  standpoint   of  ■  complete  disagreement   with  the 
modern  law. 

I'arwick   V.   Bng.  Joint    Stock    Bank,   ut   sit/>r,i:    Dyer  D,    Miimiay, 
vt    mi/irn. 

••■     \tty.  Cm.  r.  Siildea  &   Hinns  (1880)    1   Tyr.   II. 

C7  Por  ■  rigorous  dissent  from  this  attitude,  see  the  remarks  of 

mwi  n.  r...  in  W'i.r  v,  BeU  |  L877)  B  Bi    D.  2  18. 


BASIS   OF    VICARIOUS    LIABILITY        265 

to  ;itt(in|)l  a  humanist  application  of  public  policy  to  the 
problems  presented  by   flu    Cases.      The  fiction  of  implied 

authority  is  m  constantly  breaking  down,  it  so  obviously 
results  in  patent  anomalies  as  to  !>•  as  ilan^rnnis  as  it  i^ 
unsatisfactory.     When   \se  have  defined   "scope  of  em 
ployment"  as  consisting  in  acta  incidental  or  natural  to 
the  servant's  occupation,  ire  arc  only  on  the  threshold 
of  our  difficulties.     For  there  baa  been   th«'  most    wide 
ipread  divergence  of  opinion  as  to  what  cornea  within  the 
-•ope  of  auch  acts,  and   no  statistical   measurement    ia 
at  all  possibl< .     It   is  clear  enough  that   if  a  driver  em 
ployed  by  a  jobmaster  fails  to  keep  watch  over  his  cus 
tomer'a  goods,  that  the  master  ought  to  pay;  for  he  has 
held  out  the  servant  as  capable  in  the  performance  of  his 

duties  —  an    obtainment    of   trust    which    carries    with    it 
a    burden   of    responsibility.''       But    when   we   explain    the 

decision  aa  based  on  negligence  —  after  all,  a  fiction  bo 

far  as   the  master  is  concerned  —  we  have   in   reality   ad- 
vanced nowhere;  for  the  negligence  ia  that  of  the  servant 

and  the  problem  is  the  liability  of  the  master.      It   surely 
leema    better    to    emphasize    the    fact    that     public    policy 

obviously   requires  a  means  of  forcing  masters   to   k<  <  p 

continual   watch  over   the  conduct    of   their    Servants,   and 

it   is  difficult    to  see  how   that    end  would   otherwise   be 

attained.      Nor   18   it    difficult    to   understand   why    a    bank 
should  be  held  answerable  for  the  faults  of  its  manager.*1 

From  one  point  of  view,  and  that  the  orthodox,  it  i^.  of 

course,  possible  to  attribute  the  decision  in  Harwich-  to  an 

"implied  authority"  on  the  part  of  the  manager  to  act 

on  behalf  of  his  bank:  but   in  a  wider  aspect   it   is   clear, 
that  where  loss  must   occur,  more  good  is  likely  to  accrue 

«s  Abraham  *'•  Bollock  (1S01)  M  I..  T.  7!";. 

«o   Bsiwlck  P.   Bngi  Joint  StOCk   Hank,  ut  tupra. 


906       h.\>i>    OF    VICARIOUS    LIABILITY 

from  making  a  bank  liable  for  ■  mistaken  appointment, 

than  from  making  a  e»>rnd«.d<r  Buffer  for  a  not  un- 
natural reliance  on  managerial  dignity.  The  fiction  ii 
rarely  nnsatisf actor y ;  for  it  i>  hardly  possible  to  > u j » | > - 
that  the  bank  gave  its  servanl  to  act  dishonestly.  It  i^ 
surely  better  to  explain  the  ground  of  the  decision  as  an 
attempt  to  calculate  the  minimum  social  1<>^  in  a  social 
situation  vrhere  some  loss  ii  inevitable.  So,  too,  if  a 
I'  icher  renders  ber  employers  liable  for  an  unwise  treal 
incut  of  her  chargi  s,1  it  i--  not  because  it  is  part  of  her 
duty  to  act  in  such  fashion  ;i>  gives  rise  to  penalization, 
but  because  the  fact  of  her  liability  if  more  likely  to 
prevent  the  recurrence  of  the  act,  than  the  argument  that 
>hc  ua>  acting  for  her  own  benefit  and  therefore  outside 
her  authority;  for  no  child  is,  on  the  whole,  likely  to  be 
deterred  from  poking  a  fire  at  command  by  the  considera- 
tion that  a  court  might  declare  the  order  outside  the  im- 
plied  authority  of  the   teacher. 

\V<    do  not    therefore  attempt   the  definition  of  the  doc- 
trine   of    implied    authority    for    the    simple    reason    that 

definition  i^  impossible.  We  g\w  up  the  doctrine.  It 
is  impossible,  for  instance,  to  .say  just  when  the  occupa- 
tion of  a  carter  gives  him  implied  authority  to  make  a 
deviation,  and  at  what  point  his  journey  becomes  com- 
pletely independent."  A  ".small  detour"  must  obviously 
be  relative  to  the  day's  journey,  and  it  would  he  interest- 
ing to  know  exactly  upon  uhat  principles  the  courts  would 

he  prepared  to  fi\  the  proportion/1     Nor  is  the  task  at 

70  Smith  :•.  Martin   [1011]   2  K.  B.  77.r,. 

71  Cf.  Whatman  v.  Pearson  (1888)  I-  EL  8  C.  I'.  122  frith  Jod  r. 
Morrison  (1884)  8  C  ft  l'.  Wlj  and  Platten  v.  Rem  (1887)  -'  C  B. 

N.  S    S08  uitli  ('..rruack  v.  Dlgfoj   (1876)   !>   I  r.  Ii.  (  \   I..  567.      8   I    llSO 

the  remarkable  I  me  to  Smith  v.  Spiti  (1892)   UM  Mass.  :uu. 
ri  s  i    Parke,  1;.,  in  Whatman  0.  Pearson,  al  supra. 


basis    OF    VICARIOUS    LIABILITY       261 

all  easier  irhen  the  court  refusei  i<>  consider  the  object 
the  si'i'vant  had  in  mind  irhen  he  committed  1 1 1  *  -  tort. 
The  manager  <>r  a  saloon,  for  instance,  is  not   usually 

sport  i\  i  1  v    inclined    to    give    hi>    barman    in    charge    (a>    it 

turns  out  erroneously);"  and  to  declare  that,  because 
in  fact  the  property  he  was  suspected  <>f  stealing  iras 
-aic,  the  manager  could  have  no  authority  to  act)  is 
Btraininff  the  bonds  of  common  sense.     An  authority  to 

ha\i  entire  control  is,  in  an\    rational  asp.  el,  an  authority 

to  act  as  hesi  seems  to  fit  the  circumstances  and  if  the 
measures  taken  to  that  end  are  mistaken)  it  i^  yei  difficult 

to   see  exactly   wliv    the   master   should   a\oid    the    liability 

for  the  mistake.  '     Into  what   complications  this  system 

of  delimitation  may  lead  in  any  tangled  issue  that  well- 
known  case  of  Owiton  v.  Bank  of  New  South   Wale* 

made  very  obvious. 

It  may  also  mistake  the  clear  demand-  of  humanity. 
A  milkcart  was  involved  in  an  accident,  in  the  course 
of  which  a  milk-hoy  was  injured.  A  bystander  offered 
her  assistance  to  the  driver  in  order  to  see  the  hoy  home 

* 

safely.  The  cart  started  before  Bhe  was  properly  settled 
in  it,  and  she  iras  injured  by  being  thrown  out.''  It 
seems  clear  that  the  driver  was  acting  on  the  socially 
admirable  ground  of  ordinary  human  kindness;  and  it 
iras  not  unreasonable)  therefore,  to  expect  his  employers 
to  be  responsible.  The  court,  however)  took  up  an  en 
tirely  different  attitude.     Cox  v.  Midland  Count  its  H;i. 

Co.17  dvv'ulvil   that   a  station  master  cannot    hind   his  com- 
t:<    Hanson  p.  Waller  [  1901  1    1    K.  B.  80 

74  Bowler  v.  o'Cuim.ii  (1804)  162  Mas*.  819]  Pogg  a  Boston  & 
1  EL  EL  Co.  (1880)  146  Mfl  II  \\  Brown  a  .'  inrla  Engineering  ('<». 
(1806)   166   Ma  '  ■  :       I    \.  (     -. 

Houghton  p.  Pindngton  [1012]  B  K.  B 

77  (1848)  :i  Ex.  J 


268       BASIS    OF    VICARIOUS    LIABILITY 

panv    for   any    mii^i  on'  .    f<  «  >   whom    I  lie    forme*   may    mm 
mon  ;    and    it     was,    tin  it  hm  ,    li<  Id    bv    antilogy    tli.it     the 

.i, -i -i  ptance  of  help  by  Ihc  driver  was  outside  ln>  implied 

authority      It     is    ^ood    law     thai     a    t  raiiiw  ay  conduct  or 

who  too  forcibly  ejects  a  passenger  renders  his  company 
liable  in  damages;1  if  this  occun  on  ■  lonely  road, 
cannot  ■  surgeon*!  services  In-  requisitioned  sa\e  at  the 
conductor's  personal  i  \p<  d  Such  reasoning  i->  surely 

too  pedantic  to  admit  of  acceptance.     Nor  can  pre  pi 

much    faith  ill  such   a    case  8fl    NnhLll   \.   (ilasifa.       '  which 

Apparently  gives  ■  rate-collector  the  choice  between  h< 
ing  disowned  it  he  performs  ln^  duty  efficiently,  and  !>■ 
in^  dismissed  if  be  does  oot.     The  connotation  of  every 
such  case  ought  surely  to  be  the  human  circumstances  in 
which  it  occurs.     \\ «  are  beyond  that  stage  of  strict  law 

where  men  arc  hound  by  an  empty  formalism. 

The    case    is    more   difficult    when    ethical    defect    in    the 

servant's  motive  is  the  detennining  factor  in  ln^  tort, 
or  where  be  deliberately  breaks  bis  masteu's  command. 
Here  the  modern  doctrine  is  very  new  indeed,  for  a-,  late 

a-    1800    it    was    not    admitted    that     wilful    tort    could    be 

within  the  scope  of  employment.*  Parke  was  very 
anxious  to  limit  the  Liability  of  an  employer  to  cases 
when   negligence  could  be  actually  shown/'     The  origin 

of  the  Den  rule  seems  to  ha\e  been  the  growth  of  Corpo- 
rate   enterprise;*1    and    with    the    classic    judgment    of 

Will.  1  in  LimptU  v.  General  Omnibus  Co.  it   became  firmly 

SevsMVi  r.  Greenwood   (1800)  0  II.  h  S.  860  (1888)  7  U>i>i. 
355. 

ft  [1010]  S.  ('.  008]  Mf)ll|  A    C  800. 

UcMairaa  p.  Cricket!  (1800)  I  Bsst,  108. 
si  Sharrod  v.  L,  N.  W  EL  Ca   (1848)    I    I  snd  lee  the 

Judgment  "t  Brsniwefl,  L.  -T.,  in  Well  v.  Bell,  nt  twmrm, 

*-   Cf.   Haty,  op,  rit.,  p.  85. 


BASIS    OF    VICARIOUS    LIABILITY       209 

tablished.       It*  principle,  in  truth,  i>  sufficiently  clear, 

The     London     General     Omnibus     Company     had     ^ri\<ri 

printed  orders  to  iti  driven  not  to  interfere  irith  the 
vehicles  of  competing  compani(  .  The  order  iras  wil- 
fullv  ditobejedj  And  yei  judgment  iras  ^\ui  &gains1  the 
company.  The  driver,  as  Willea  pointed  out,  "was  em 
ployed  not  only  to  drive  the  omnibus,  but  also  to  gH 
Hindi  money  as  he  could  for  1  > i ^  master,  and  to  do  it  in 
rivalry  vrith  other  omnibuses  <>n  the  road.  The  ad  of 
driving  as  he  did  is  not  inconsistent  with  his  employment, 
when  explained  by  his  desire  to  gel  before  tin*  other 
omnibus."  He  iras  in  do  iray  disturbed  by  the  company's 
instructions.  He  pointed  out  bow  easy  it  would  be  to 
issue  secrel  orders  countermanding  them,  and  for  the 
master  thus  both  to  benefit  himself,  and  to  keep  on  the 
right  side  of  the  law.  '  That,  surely,  is  a  very  m  iry 
and  valuable  limitation;  for  wen-  the  law  otherwise,  there 
would  be  a  positive  incentive  to  employers  to  use  their 

humble     servants     as     the    screen     for    their     wrongdoing. 

The  social  object  of  prevention  can  only  be  obtained  by 

an  effective  and  thoroughgoing  penalization. 

The  ca^e  IB  similar  when  trespass  becomes  extended 
to   fraud.  The  attempt   to  discredit    the  change  on  the 

ground  that  fraud  implies  a  state  of  mind  on  the  part 
of  the  defendanl   which  does  not   in  fad   exist,*   misses 

ss  rt  tupru;  r\\  also.  Ward  d.  Gen.  Ouuribai  Co.  (1878)  42  L  .1. 
(c  P.)  365;  Pittsburgh  C  B  St.  I..  It.  EL  Co,  a  Kirk  (1886)  utt 
In.l.  809. 

Ibid,  at   p.  BB8|  ef.  al  o   tfcCmng  a   Dearborne   (1880)   134 
Pa.  B88. 

8^  As  in  B&rwiek, 

Bee  the  remark!  of  BrmmweO,  I..  .J.,  in  Well  :••  Bell,  ut  twprm: 

"I    do    n. .t     understand    legal    fraud;    to    my    miiul    it     lias    no    more 

meaning  than  legal  heal  or  legal  cold,  legal  light   or  legal  ibade." 
Bot   IfacKaj   a  Com.  I',  .id,  of  S.  B.  (h;i)   ">  P.  C  B84j  Swift  a 


STO       BASIS    OF    VICARIOUS    LIABILITY 

tl.  ut    point,  that    in  mi  ease  of  \  iea  riou>  liability 

l-  moral  blame  attached  t<>  tin-  master.  Liability  for 
wrongful  arrest  is  equally  clear;  for  it  is  obvious  that 
the  action  i>  entirely  consistent  with  the  scope  of  *h«' 
servant's  employment  unless  fiction  is  to  be  invoked,*1 
and  miles.*  v, ,  arc  to  be  without  means  for  protecting  the 
public  from  needless  Buffering.*"  It  is  clearly  limply  a 
social  interpretation  of  negligence.  Because  a  servant 
doei  things  in  the  itress  of  the  moment  which  judicial 
reflection  deems  to  have  been  actually  unnece  sarv,  there 
it  no  reason  why  the  act  ihould  not  bear  its  full  con 
quenc  One  regrets  the  continual  use  of  the  fiction  of 
"implied  ant horit  v"; "''  hut  that  is  no  reason  irhy  the 
necessity  of  the  rule  Bhould  not  had  to  the  discussion  of 
what  other  n  ;imims  may  be  given  for  its  usage.  To  nar- 
row liahilitv  hv  considering  authority  actually  expressed 
is  to  endanger  yerv  seriouslj  our  control  of  social  lif- 

The  employment  of  a  servant  to  perform  certain  func- 
tions must,  on  the  whole,  mean  his  employment  to  per- 
form them  as  he  deems  best  fitted,  in  his  interpretation 

of    his    instructions,    to    serve    his    master's    interest.91      It 

is  not  much  consolation  to  an  injured  plaintiff  to  be  told 

Wmterbotham  (1878)  I ..  EL  8  <).  B.  Jit;  Brit  Mutual  Bank  r. 
Caarmwood  Potest  By.  Ca  (1887)   Ifi  Q.  B,  I).  Til  have  establi  bed 

it   firmly.     Sir  ftlflO   PoUock,    ToHt   (6th  ed.)   j>.  !•_>  „.  (|. 

Moore  p.  Metropolitan  By.  Ca  (1872)  S  Q.  B.  D.  86 j  Goff  a 

( i.  N*.  K.  ( '<»„  ut  sii pro. 

68  i  h.ivc  diacuiied  below  the  unfortunate  limitation  «»f  this  doc- 
trine  through  the  misapplication  of  ultra  viri 

- '  Mr.  I'.ity  in  the  fifth  chapter  of  hU  book  ii  able  ho  exploit  ttiis 
u  ith  v-r.-.it  effect 

•••"  hi  [.ewe  -  f ;.  \.  Ry,  Ca  (1888)  82  L  J.  (Q,  B.)  5_»i.  Matthew 
and  Wright,   J.  .T.,  reaDy  take  thli  ground.     It   is  th<-  "must*1  of  a 

railway   porter1     DO   itinn   that    tli.y   COB  -  it  ler. 

*»  (  f.  Porlong  :  South  London  Tram  Ca  (1884)  t  Cab.  aad  B. 
818, 


B  iSIS    OF    VICARIOUS    l  I  ABILITY        j,  I 

that  the  defendant  meant  do  harm;  fur.  i  Brian,  ('.  .1., 
laid  more  than  four  hundred  3  go,  tl     1  >urti  <lo 

not    fry    the    thoughts   of    men.  \\ '«■    have    here,  el.x 

ulitir,  to  follow  tin  broad  rule  laid  down  l>v  Shaw,  ('.  .1., 
in  a  famous  case*  "This  iu  he  said,  Mis  obviously 
founded  on  the  great  principle  of  social  duty,  that  every 
man  in  the  management  of  his  own  affairs,  irhether  l»v 
himself,  or  bj  hi^  agents,  shall  m>  conduct  them  a>  not  to 
injure  another;  and  if  he  does  not,  and  another  thereby 
.sustains  damage,  he  shall  answer  for  it."  Nor  has  the 
application  of  the  rule  shown  it  to  be  without  justi- 
ficat  ion. 

And,  after  all,  where  the  master  most  needs  protection) 
he  obtains  it.  II*'  is  not  liable  for  the  acts  of  his  serv- 
ant which  are  shown  to  he  clearly  unconnected  with  his 
-  nice''  No  master,  for  example,  can  possibly  warrant 
the  moral  impeccability  of  his  servants;  and  it  jn  not 
difficult  to  see  why  Collins,  M.  R..,  should  have  held  that 
when  a  servant  has  in  \  it  u  objects  demonstrably  and  en 

tirelv    bis   own,   he   should,    in   committing   his    tort,   "'have 

s»-\errd  hi>  connection  with  his  master,  and  become  a 
stranger.01       The  phrasi   is  not  perhaps  of  the  happiest ; 

m  Y.  B.  17  B.  IV.  I. 

93  Set  1  arwell  x\  Boston  and  Worcester  EL  EL  Co.  (1842)  t  Met 
(Mass.)  10]  sad  ice  the  admirable  remarks  of  E&sher,  M.  EL,  in 
Dyer  v.  Monday,  ">  twpm  .it   p.  746t  adhere  In-  | >< » i n t  -  out   tin-  r>  ii 

meaning  <>f  the  term  authority.     Six.-  x\  Trice   (Is"-')   2   Baj    (S    I 

la  an  Interesting  example  of  bow  a  ipeda]  soda!  iHoation  will 
enable  tin-  master  to  eaca]  ponsibility. 

McManoj  :•.  Crkkett,  <n  §wpra;  Crofl  v.   Uison  (1821)  v  H.  9c 
\l«t.  990 \   Hoar  p.   Maine  Central    EL   EL  Co.    (1880)    7i»   Mi     I 

-  (1866)  BO  How.  iv.  (\.  v.)    ;iv  DrlseoD  a  Scran- 

tori   (isoii)    |,,,   \|  -..    |'  -    i  urgl,   l\   \\\  \  <      ftj,  Qq,  r.   M.1Urer 

(1^71  |    21   <>li.  St.    121. 

»8  Ox-hire  v.  Hailey  [1906]   1  K.  B.  _    I    i\   \>.  ML 


272       H\>is    OF    VICARIOUS    LIABILITY 

it  c'lrrn  >  tli»  crutch  of  fiction  to  sustain  it.     Bui  every- 

ont    can    ICC    that    it    would    not    !><•    right    to   hold   a    master 

liable  for  the  chance  temptations  to  which  an  usually 
reputed  bones!  employee  might  succumb-  the  more  so 
ai  the  temptation  is  rather  the  creal ion  of  the  third  party 
than  bis  own.  It  mav  even  In-  suggested  that,  in  this 
respect)  the  master  has  been  unduly  protected;  for  when 

*i    train    conductor    bits    a    boy    for   jumping   on    his    car, 

he  i>  doing  what  he  believes  to  he  for  his  employer's  good, 

and  OUght  duly  to  make  him  liable.'"      To  use  a  supposed 

sudden  cessation  of  authority  at   the  moment   when  the 

conductor's  unlawful  hand  descends  upon  its  victim's  car 
is  to  strain  rationality  to  the  breaking-point.  Mr.  Baty 
complains''7  that  a  consideration  of  the  servant's  motive 
ought  alone  to  be  sufficient  to  save  his  master  from 
liability.      But    the    truth    litre    is    that    everything    uiu>t 

depend  on  the  surrounding  circumstances  of  the  cases 

with  which  the  courts  are  called  upon  to  deal.  The 
reliance    to    be    placed    upon    a    coachman,"    for    instance, 

i>  different  in  character  from  the  reliance  usually  to  be 
placed  upon  a  bank  manager,09  and  it  is  reasonable  that 

a  distinction   should   be   made  between    them;  and   what    i> 

true  of  a  bank  manager  does  not.  a-  if  seems,  apply  to  . 
clerk  in  a  company."        The  rub-  musi  wait  on  the  fact  \, 

What  is  here  suggested  is  the  simph   thesis  that  onl\ 
social  interpretation  of  the  law  will  give  us  a  satisfactory 

'•"■•  K.iril.v  r.  L.  C  C.  (1013)  29  T.  L  EL  fiftO;  ct  Central  Ry,  Co,  v. 
Peacock  (1888)  OS  Md  867j  New  Orleaoj  ft  S.  I.    R.  Co.  v.  Jop 
(iftfM)  \vj  v.  s.  is. 

Baty,  op,  rit.  i"'>.  \    In  Cheshire  v.  Banleyj  ui  *ii/>ra. 

bo  Coin.  Bank  of  N.  R.,  "t  iwpra. 

Ruben  v.  Greal   Pingall  Consolidated   [ion*;]   A.  c.  130.    S 
alto  H.-nid. worth  v.  city  of  Glasgow  Nnk  (1880)  o  A.  ('.  811  where 
the  cases  arc  collected 


BASIS    OF    VICARIOUS    LIABILITY       -j?:* 

clue  to  the  bewildering  labyrinth  thai  confront!  u>.  If 
the  judges  continue  to  apply  general  principles  founded 

on   a   dangerous  and   unsatisfying  fiction,  only   confusion 

of  a  lamentable  kind  can  result.     It   is  hardly  possible) 
as  the  case  now  Btands,  to  avoid  a   perplexing  rariety 
of  opinion  as  to  whether  any  given  issue  comes  within 
the  Bcope  of  "implied  authority91  or  not,     Bui  it  is  p<< 
sible  to  have  Bufficienl   confidence  in  the  good   sense  of 

the  COUrtfl   to  ask    for  a   frankly   communal   application  of 

the  law.  The  promotion  of  social  solidarity  is  an  end 
it  [s  peculiarly  incumbenl  upon  the  Law  to  promote,  Bince 
its  own  strength,  and  even  life,  depends  upon  the  growth 
of  thai  sentiment,  The  fiction  of  implied  authority  is 
no  more  than  a  barbarous  relic  of  individualistic  interpre- 
tation. It  savors  too  dangerously  of  the  time  when  the 
courts  held  that  they  were  to  do  no  more  than  apply  a 
given  remedy  to  a  given  set  of  facts  concerning  John  Doe 
and  Richard  Roe  —  with  a  lofty  unconcern  for  the  world 
at  large.  We  are  passing  beyond  that  stage.  The  mean- 
ing to  he  given  to  the  scope  of  employment  is  bound 
more  and  more  to  affect  vitally  the  whole  future  of  in- 
dustry. It  is  according  as  lawyers  realize  this,  that  they 
will  he  equipped  to  deal  adequately  with  the  facts  of 
lite.  It  is,  it  is  true,  an  interpretation  they  may  not 
find  in  the  books.  Rut  law  is  perhaps  in  need  of  the 
stimulus  of  a  freer  atmosphere.101 


Such  an  attitude  is  the  more  important  when  the  de- 
personalization of  industry  is  home  in  mind.  Machinery 
and  corporate  enterprise  have  effected  a  revolution,  the 

101  Ct  Found,  "Law  in  Bookf  and  Law  in  Action,"  M  -/»»•  L. 
II.  0.    I-'. 


•j;  I       B  ISIS   OF    \  K  UUors    i.i  VBELITY 

\<rv    Iii^iiiiiiii^  of  which   uc   a  it  ahle  only   dimly    to   coii- 

ceive,  The  old,  intimate  relation  between  matter  and 
•errant  can  hardly  now  ntum.  The  apprentice  no 
longer   marriei   his   master's   daughter,    for    tlw   umple 

reason    that    lii>    master    no   longer   lias   a   daughter,   or,    if 

he  does,  thai  daughter  i>  a  corporation  irho  ii  not  given 
in  marriage.  The  modern  bu  in*  ia  man  is  either  ■  dirt 
tor  or  ■  manager  and  In  ieea  nothing,  often  enough 
knows  nothing,  of  lii--  Bervants.  Thai  i-,  of  course,  the 
natural  consequence  of  the  scale  of  modern  commercial 
enterprise,  but  it  i^  ■  consequence  of  irhich  the  result* 
need  careful  emphasi  And  alongside1  this  industrial 
impersonalism  lias  gone  the  incredible  developmenl  of 
machinery  bo  that,  as  .Mr.  Birrell  lias  grimly  noted,"    it 

is    with    amis    ami    legs    that    the    courts    arc    largely    eon- 

cerned.  Now  these  corporations  are,  in  the  eyes  even  of 
the  law,    juristic   persons,104   and   since   they   ad    as   an 

ordinary   individual  would  act   in  a  similar  situation,  that 

ib  to  Bay  by  agents  and  servants,  if  is  clearly  reasonable, 
that  they  should,  equally  with  individuals,  be  held  vicari- 
ously liable  for  such  acts  as  those  agents  and  servants 
may  perform.  Bui  it  has  not  proved  easy  to  establish 
this  doctrine  in  anything  like  its  necessary  completeness. 
The  law  has  accepted  the  concession  theory  of  corporate 
|m  rsonality,  and  the  grim  shadow  of  ultra  viret  has  fallen 

The  reader  will  find  in   Mr.  Sidney   Webb'i  Towowdt  Social 

hi  iit'K-rurii     (1916)    ■    vrry    brilliant    and      llggestive    sketch    of    the 

modern  change. 

St  ■  his  Low  of  Employ*™*  ZAabUUtf,  pp 

Cf.  99  //-or.  /..  Ran.  MM  ir.  The  <i  >  ik  treatment  <»f  thb 
problem  i>  to  be  found  in  MaJtland*i  famous  introduction  t<»  liis 
tiin  lation  <»f  Gierke's  Political  Theorirn  >>f  th>  u, /,//,  /  ,,  Gen- 
eral]] tin-  failed  .Hid  most  brilliant  treatmenl  Is  in  Saleilles,  La 
l'<  i    ■niitiUti   Jvridiqw    ( 1910). 


BASIS    OF    VICARIOUS    LIABILITY       27fi 

athwart  the  pathway  of  our  needs.  "The  public,"  Lord 
BramweU  bai  told  as,  '*i-  entitled  i<>  keep  a  registered 
company  to  its  registered  business,"  and  10  a  company 
may  not  oo  beyond  the  powers  thai  nave  been  confern  I 
11 1 ><) n  it  in  its  origin.  Hut  the  public  had  t«>  be  pro 
tected  Prom  the  consequences  <>f  corporate  enterprise,  and 
the  nineteenth  century  has  gradually  teen  the  extension 
to  it   of  tlif  principles  of  individual   liability.     It    is   m 

difficult,    for    instance,    for    a    single    individual    to    run    a 

railway,  that  it  would  be  intolerable  it  the  mere  problem 
of  numbers  prevented  the  attainment  <>f  justice  So 
trover,1*  trespass,10  and  nuisance10  had  all  been  suc- 
cessfully pled  against  the  corporate  person  before  the 
first  half  of  the  century  had  passed.  Malicious  prose- 
cution,10- libel,110  fraud,111  and  false  imprisonment  n~ 
were  little  by  little  compelled  to  follow. 

The  hesitations  that  have  been  characteristic  of  our 

policy  lie  at  the  door  of  our  conception  of  the  corporation. 
So  long  as  we  think  of  it  as  a  fiction  created  only  for 
certain    ends    which    are    legal,    the    doctrine    of    implied 

authority  logically  prevents  us  from  admitting  that  it 
can    he   guilty    of    authorizing    illegal    acts.11      Having 

made  it  mindless,  we  are  unwilling  to  admit  it  guilty  of 
acts  which  seem  to  carry  with  them  the  .stamp  of  conscious 
immorality.      Hut  immediately  w  c  surrender  so  inadequate 

105  A.  G.  v.  ('..    B.    By.  Co.    (1879)    11    Ch.   I).    1 1!>,   Ma     Cf.   -"•> 
Horv.  L.  fUv,  MM  f. 

io«  smith  v.  Birmingham  Gas.  Co.  (1884)  i    LA  B   886. 

kfaond  r.  MonmoutsaMrc  ('anal  Co.  (184<>)  \  M.  \  \v.  rvj 
io-  ft.  v.  O,  N.  K.  Co.  ( 1848)  9  ().  B.  818. 
i   •  <  -iti/.i-ns'  Life  Ass.  Co.  p.  Brown  [1904]   A.  (     108,  186. 
no  Whit.fi.-ld  r.  S.  B.  R.  (o.  (1858)  81  I-  .».  (Q.  B.)  888, 
in  Barwiek  r.  Bng.  Joinl  stock  Bank,  ut  mars, 
in  it  t.rn  Connties  By.  I  -   •    Broom  (i^"T)  L  B.  •-'  K.\.  8881 
Ill    Ihi      ,,ni    I,.  Im    Mr.  r..it>'-  rlew.     <>/>  nf    p.  «•!»  ir. 


276       BASIS    OF    VICARIOUS    LIABILITY 

a    theory,    the    ground     for    tin-    extrusion    of    ficarioui 

liability  to  the  corporate  person  ii  very  char.  It  acts 
ami  In  acted  for;  it  musl  then  pay  the  penalty  for  its 
habits.  In  a  world  where  individual  enterprise  is  so 
largely  replaced)  the  security  of  business  relationships 
would  !)»•  enormously  impaired  unless  ue  had  the  infant 
of  preventing  a  company  from  repudiating  its  servants' 
torts,114  The  reason  is  not  thai  companies  are  ns  « 1 1  able 
t<>  pay;  for  it  is  not  the  business  of  Law  to  see  thai  ■ 
debtor  i*>  solvent,  but  to  provide  ■  remedy  for  admitted 

M  rong. 

The  enforcemenl  of  such  vicarious  liability  is  more 
urgent  for  another  reason.  The  dissolution  of  individ- 
ual business  »  aterprise  into  the  corporation  system  has 
tended  to  harden  the  conditions  of  commercial  life.  The 
impersonality  of  a  company  employing  say  five  thousand 
men  is  perhaps  inevitable;  but  in  its  methods  of  operation, 

it  tends  to  be  less  careful  of  human  life,  more  socially 
Wasteful  than  the  individual  has  been.11  But  its  conse- 
quences   to  society   are  equally   momentous,   and    we   dare 

not  judge  it  differently.116     It  is  necessary,  for  instant 

to  see  to  it  that  we  have  pure  food  and  unadulterated 
milk,  and  it  can  make  no  difference  to  u>>  whether  the 
offender  against  our  requirements  be  individual  or  cor- 
porate.11'    It  is  only  by  enforcing  vicarious  liability  that 

m  Cf.  Gierke,  Dit    Qtnottttuehaftt   Tktorits   umd  <li>    Dtwtieht 

Recht.</>r,  ( limn/,  mm  :*,  and  especially    Loening,   /'«'<    Haftmug  </".« 

stun/).*,  j>.  89.    gee  .iiso  Pollock,  op,  eft.  at  j>.  i_'7. 

its  For   an   Interesting   suggestion   that    it    should   therefore   be 

Judged  differently,  see  If.  D.  Petre,  L\l<  of  O.  TftrtU,  II,  I82. 
«•  Cf.  <\  I).  Bums,  rh,   MoraMif  of  Natiom,  Che.  l  and  2, 
m  Pearks  etc.  v,  Ward  [1902]  2  K.  B.  I,  and  Chater  v.  Preeth 

[1911]  9  K.  B.  882 j  st  ran  dun  Bros.  Catering  Co.  v,  CoH  (1897)  55 

<  >h.  st.  B9S      a  rery  striking 


BASIS    OF    VICARIOUS    LIABILITY        277 

•?(  CAU  hope  t"  make  effective  those  hibor  laws  intend.  . I 
to   promote   tin-   well, in    of    the   worka  i  for   it    i>    | 

frequently     the    corporation    that     evades    tin-    statute    or 

attempts  to  discredit  it.'  It  is  useless  to  argue  that 
tin    responsibility   rests   upon   the  agent;   for   it    i>   un- 

fort  imaft  1  v  too  char  that  men  may  act  \«rv  differently 
in  their  Institutional  relations  than  in  their  ordinary 
mode  of  life,11  The  London  Dock  strike  of  1911  mi^- 
gested  that  a  man  who  in  his  domestic  Capacity  will  dis- 
play all  the  most  amiable  sentiments  of  an  average  re- 
tired grocer  will,  when  acting  for  a  greal  dock  company] 
show    himself   immovable   and    unrelenting.      Hut    if    he 

injure  society  in  his  activities  it  is  surely  clear  that 
means  must  be  at  hand  to  render  his  principal  respon- 
sible*     That,    at    anv    rate,    was    the    basis    of    the    gn   it 

judgment  of  Farwell,  J.,  in  the  Tafj  Yule  case.1-1     No 

one  supposes  that  trade  union  officials  will  commit  tortfl 
unless  there  are  trade  unions  for  which  to  commit  them. 
There  may  be  special  reasons  for  taking  the  trade  unions 
outside  the  ordinary  law,1-'-'  but  that  is  not  to  say  that 
the  acts  would  not  otherwise  be  corporafely  tortious  in 
character.      No   one    can    diny,    for    example,    the    reality 

us  Kuegg,  /  i..   ■  f  Employer  and  Workman  in  England,  Lect.  I\'. 
us  Anyone  who  studies  the   />''  ports  <>f  tin    Ckttf  Xn*p*ctot  of 

I'.irtorii  x    in     England,    or    the     Hulh  fins    of    tin      Hun  on    <>f     L<il>t<r, 

•  riiiiy  No.  i vi  of  inn,  which  deal  with  the  enforcement  of  legis- 
lation,  will    he    Impressed    by    this   state   of   affairs.      For   statistic- 

to  the  part  played  by  the  great  corporationfl  in  the  extension  of  the 
Fourteenth  Amendment   to  labor  legislation,  Bee  Collins,   //.    p  <ir- 

t>'n'h    .1  mi  n<hii' tit    and   tin    Stat  eg. 

See  an  Interesting  little  essay   by   Father  Tyrrell  on  the  i 
ite   mind    in   his    'ihroiioh   Sr;illo   owl   ('liur;/f- 
i-i   [1901]   A.  (      t 

See  Mr.  and  Mr-.  Webb*i  remarks  in  their  Introduction  to  Un- 
ion edition  of  their  History  of  'I  rod,    Unionism. 


278       BASIS    OF    VICARIOUS    LIABILITY 

of  those  entities  \s ■■  call    Kngland  and  Germany,     Not 

Otll)    do    they   art,   but    persons   act    on    their   behalf.      It 

una  then  socially  necessary  to  make  then  bear  the 
burden  <>f  a  policy  for  which  they  arc  at  bottom  re- 
sponsible.1J! 

\<>r  is  the  caae  ai  all  different  when  the  association 
pre  attempt  to  make  corporately  liable  happens  not  to 
have  chosen  the  path  of  incorporation.  There  teems  no 
reason  in  the  world  why  a  technicality  of  registration 
should  be  allowed  to  differentiate  between  societies  not  in 
i  isence  distinct.  Yet  as  the  law  now  stands  active  partic- 
ipation N  essentia]  to  such  liability.1"'  Here  contract  has 
betrayed  us;  tor  we  regard  the  voluntary  association  as 

no  more  than  a  chance  collection  of  individuals  who  bavc 
agreed   to   perform   certain   acts;   and    tiny   could    not,   of 

course,  assent  to  the  commission  of  illegalities.  "]$<•- 
cause,"  says  Mr.  Haty.1"  "William  Sikes  is  a  bad  man, 
Lady  Florence  Belgrave  is  not  to  be  taxed  with  abetting 

burglar?  if  Bhe  sends  him  soup.w  Hut  it  is  not  the  .soup 
to  which  anyone  —  except  Mr.  Sikes  and  the  philosophers 
of  the  London  Charity  Organization  Society  —  will  ob- 
ject ;  the  problem  is  as  to  the  establishment  by  Mr.  Siki  > 
of  a  fund  which,  though  subscribed  for  legal  purposes, 

i>  yet  used  in  an  illegal  manner.1"''      No  one  really  desin  I 

to  attack  the  private  fortunes  of  associated  individuals; 
but  it  i>  eminently  desirable  that  means  should  be  bad 
of  getting  at  the  funds  they  collect  ively  subscribe,  when 
Legal — or     illegal  —  results    flow     from     their    collective 

cj.t  s«c  13  Jour,  of  Phil.  Piyeh,  \  Be.  M§lkod9,  ]>.  85, 
124  Brown  v.  Lewli  (1896)  12  T.  L.  EL  155, 
ill  Cf,  29  Edrv.  /..  lUv.  117  ft. 

12«    B.ify,  op.  rit.  52. 

fof   Instance,   the   money   Bubscribecl    to    arm    UC   different 
volunteer  armirs  in  Ireland  recently. 


UASls   OF    VICARIOUS    LIABILITY       279 

action.  If  a  religious  order,  which  has  not  been  in- 
corporated,  chooaee  to  have  the  tervices  of  an  architect, 
tlic  mere  fact  that  its  members  are  scattered,  and  had 
never  contemplated  the  use  made  of  subscriptions  l»v 
their  representatives;  ought  not  to  hinder  tin-  architect 
from  securing  his  rights  l>\  ■  representative  action, 
If  an  unincorporate  aggregate  acts  as  an  Individual 
body,  it  is  Burelv  good  sense,  it  ought  do  less  surely  t<> 
be  good  law,  to  give  it  bodiliness.  Thai  Is  why  one 
can  sympathize  with  decisions  such  as  that  in  Ellis  \. 
National  Free  Labor  Association?*  or,  conversely,  frith 
that  in  Brown  v.  Thompson  and  Co.'  The  same  is 
true  of  the  liability  of  clubs  acting  through  their  com- 
mittees. No  one  imagines  that  the  committee  of  a  foot- 
ball club  would,  as  a  group  of  respectable  and  individual 

householders,    erect    a    grand    stand;    and    if    that     stand 

collapses,   a   technicality   of   registration    ought    not   to 
defeat    the  ends  of  justice.'         An  unincorporate  individ- 
ual is  an  unity  for  the  fiscal  purposes  of  the  state; 
it  is  difficult  to  sec  why  its  social  needs  should  be  refused 
a  similar  protection. 

* 

VI 

The  basis  of  modern  legislation  on  employer's  liability 
and  workmen's  compensation  is  ury  similar  in  character. 

iti  Walker  v,  Sur  [1914]  2  K.  B.  990. 

129  Sec,  for  Instance,  the  amazing  remark!  <>t  Lord  Halsburj  In 
Daimler  Co.  v.  Continental  Tyre  Co.  [1916]  2  \.  C.  9W  al  p.  u<;. 
Maitland  mighl  never  have  written  so  far  ai  t His  view  of  the  nature 
i  i    i  corporation  is  concerned. 

i  |  1906]  7   Pac  829.  1U   1 1912]  S.   C.   B6a 

Brown  v,  Lewis,  ui  rawra,  anil  Bee  also  Wise  v.   Perpetual 
Trust,,-  Co.  [1906]   A.  C.  199. 

16  A    Ml  Vict  e.  n  :  Curtis  r.  Old   Monk  1. 1  ml  Cmserx  at  i\ ,     \  -  -o 
I  i.ition  [  1906]    \.  C.  B6\ 


880       BASIS    OF    VICARIOUS    LIABILITY 

H»»tli  represent  the  typical  modern  reaction  against  mid- 
Victorian  individualism,  It  i^  interesting  to  note  the 
^>!in  what  curious  divergence  in  the  attitude  of  lawyers 
ami  economists  to  these  problems.  To  the  economist  the 
it  v  of  luch  legislation  is  abundantly  evident.  It 
i-  simply  that  the  needs  of  the  modern  state  require  that 
the  burden  of  loss  <>f  life,  or  persona]  injury  in  industry, 
shall  l><  charged  to  the  expenses  of  production,  shall 
In  borne,  that  is  to  say,  by  the  employer.  H«  know s 
\\«ll  enough  that  eventually  the  cost  will  be  paid  l>v  the 
community  in  the  form  of  increased  prices,  but  that  is 
something  it  is  not  unwilling  to  pay.  It  is  realized  that 
if  ?i  workman  is  compelled  to  hike  upon  himself  all  the 
risks  of  his  employment,  the  results  will  !)«■  socially  disas- 
trous. For  tin-  nal  social  unit  at  the  present  time  is 
not  tla  individual  but  th*-  family.  It  is  not  merely  the 
single  worker  who  is  employed;  his  wages  in  reality  rep 
resent  the  maintenance  of  those  who  arc  dependent  upon 
him.  Prom  the  standpoint  of  public  policy,  therefore, 
for  the  employer  to  assert  that   risk  must  lie  where  it 

falls   is   simply   impossible.      VVe  cannot    allow    the   certifi- 
cated managers  <>f  collieries  to  kill  their  miners  with  im- 
punity.1'       If    the     carelessness     of     a     porter     breaks     a 
tffolding    upon    which     a     carpenter     is     standing,    his 

im  For  characteristic  economic  opinion,  see  Seager,  Principle*  of 
i  onomim,  p.  col;  Taussig,  '-'  Principlet  of  Economic*,  884;  2  Chap- 
man, Work  and  Wage*,  101;  Schaflle,  TheorM  of  L<>i<<>r  Protection, 
XIII;  Carlton,  IIi*t<>rii  <>f  tin  Problem*  of  Organized  Lobar,  p.  •"{<U: 

<tl  Intmrance,  paeeim',  Eastman,  RPorl   Accident*  and  U 
Lam;    Barlow    in    7    Economic    Jowr.,    :5t">:    and    II,    IMA    3.r>t: 
WlUooghby,    \Vnrk\Ti<iTin  n'n   tneurcmce,  p.    {-'7;   tnd   shove   nil,  the 
cl.issic  eleventh  chapter  in  Welti),  Tndnetrial  Democracy,  especially 
\  oL  II,  pp.  881  SI. 

Howell   v  Landore  Siemens  Steel  Co.  (18T4)  L.  it.  10  Q.  B.  S3, 


BASIS    OF    VICARIOUS    LIABILITY        881 

family  ought  do!  to  I  irve  through  his  injury.1  Tne 
need  of  the  modern  state  ii  mosl  emphatically  that  th< 
welfare  of  tin  worker*  .should  he  the  first  charge  upon 
indusi  rv. 

Hut  the  law  baa  approached  the  problem  from  m  en 
tirclv  different  an  angle  ai  to  place  tin    workman  in  a 
peculiarly  unfortunate  position  until  a  fairlj  recent  time. 
It   iras  cn!i>i(ji  it  (I  essentia]   that   when  a  servant    under 
took  employment  he  should  accept  all  the  n>ks  of  servi< 
To  do  otherwise,  said   Abinger,  ('.  J.,1      "would  l><    an 
encouragement  to  the  servant  to  omit  that  diligence  ami 

caution   which   he   is   in  duty   hound    to   exercise  on   behalf 

of  his  master.*'  There  is  a  Ions  history  hchind  the  enun- 
ciation  of  that   pathetic  self -reliance ;  though  as  a  legal 

fact     Lord    Bsher    has    told    us    that     it    became    good  — 

or  bad  —  law  "principally  through  the  ingenuity  of 
Lord    Abinger   in   suggesting   analogies    in    Priettley   v. 

Fouler."  As  a  fact  it  was  grounded  upon  a  series 
of  most  questionable  hypotheses.  There  could  not  be, 
so  the  law  held,  where  master  and  servant  are  concerned, 
any  mutual  liability  not  based  on  a  personal  fault  of  the 
former,  since  the  servant  knowingly  and  willingly  und< 

took  the  risks  of  service.      Hut  this  i>  not  only  the  mei 
fiction   of  a    peculiarly   vicious   kind.      It    created   aNo  our 

law   of   negligence   for  strangers   and   another,   far   1' 
stringent,  where  masters  were  concerned.        The  results 
involved  were  patently  unjust  and  discriminated  undulj  . 

and    it     was    natural    that     the    first    efforts    of    the    trad 
in  Morgan  r.  Vale  «.f  Neath  H>.  ('«•.  (1865)  I..  K.  l  Q.  B.  149. 

This    point     is    well    worked    «miI     in    Mr.    HobSOD*!     Work    arol 
\Y,nlth. 

Prl   •'•  v  . .  Powler  (1887)  8  Iff.  h  W.  i  at  v.  7. 

1        l.irrvll,   I.mc  of  l\mj>l<<<n  r.»'    lAabiUttf,  jv 

i*°  Cf.  Webbj  HiitorM  of  Trod*  Uwkntitw^  i>-  •> 


289       BASIS    OF    VICARIOUS    LIABILITY 

nnioria   after    their   legal    recognition    - 1 1 « > 1 1 1  <  I    1 1 ; i  \  <  •    been 
deroted    bo    the   destruction  of   the   felloi  servant    doc- 
trine,141    This,   after   much    effort,    they    irer<    able    to 
complish  in  England  l>y  the  Employers'  Liability  Act 

of  isso.  Judicial  interpretation  lias  moreover  <\ 
plained  that,  in  this  context,  the  maxim  volenti  nan  fit 
itiimid  oughl  to  mean  in  reality  just  nothing  at  all.14* 
The  prork  thus  admirably  begun  was  supplemented  and 
completed  in  the  Workmen's  Compensation  Acts  of  1897 
and  1906*  The  effect  of  that  legislation  is  perfectly 
clear.  In  certain  specified  cases  if  imposes  upon  th<' 
employer  the  liability  of  providing  compensation  to  a 
workman  or  the  dependents  of  a  workman  who  is  either 

killed  or  injured  in  tin*  course  of  his  employment.  It 
it  noteworthy  thai  tins  method  of  social  insurance  i> 
not  confined  to  England  alone  but,  in  some  form  or  other, 
is  common  to  the  continent  of  Kurope.144 

In  this  country,  however,  much  of  the  old  Legal  atti- 
tudes has  survived,  and  the  situation  has  become  com- 
plicated by  problems  of  constitutional  interpretation. 

Such  BtatuteS,  says  Judge  Smith,14  "are  in  direct  con- 
flict  with    the   fundamental    rule  of   modern   common    law 

i4i  Hie  sequence   Reform    Act    1867,  Trade    Union    \<-k    i^ti  <>. 

Employers'  Liability  Act  L880  i-  surely  very  significant;  sec  Wcbh, 
l->r.  rit. 

14=   18  &   M  Vict  Ch.  42. 

M3  smith  v.  Baker  1 1891  ]   A.  c.  826. 

144  Mr.  A.  I\  Higgina  in  hi.  Law  of  Employer's  Liability  hai  dis- 
caaaed  the  continental  attitude 

145  Mrchciu    in    If    .\m.    L.    Iii-v.   221,   and    Smith    in   89    H<irr.    I.. 

/.'/:■.  286,  -''if.  are  very  typical  <»f  this.    Cf.  the  weighty  remarki  of 

I'reund   in    l!»  Cr,,n    Bui   80,   and   2   .lin.    /,<»/>.    L<   /.    R§V,    t  >:    and   of 

I. -w  is  in  :is  Aim.  Am,  Acad.  Pot  Be.  1 1 *>.  See  also  the  remarkable 
jadgmenl  in  free  r.  So.  Buffalo  Ry.  Co,  (inn)  201  N.  Y.  271. 

14'.  27  Uarx.   L.   !!■  |  .  288. 


BASIS    OF    VICARIOUS    LIABILITY 

to  the  ordinary  rrcpiisites  of  a  tort";  and  In  pointi 
out,  that  the  modern  conception  i>  reallj  akin  to  the 
iik  <li<  \ alism  prhich  Apportioned  blame  irrespectw  of 
motivei  Hut  it  maj  !>•  questioned  whether  the  statutes 
nrere  i  rer  intended  to  throw  any  Light  upon  the  theorjf  of 
torU.  Thai  at  irhich  they  aim  ia  simply,  for  social 
reasons,  to  lecnre  the  irorker  against  the  dangers  of  his 
emplojmeni  in  the  belief,  that  it  is  more  advantageous 
for  the  burden  to  fall  upon  the  employer."7  It  does  not 
base  that  burden  upon  tort  at  all.  On  the  contrary  i' 
irithdrawa  it  from  the  ordinary  concepts  «»f  law  bv  mas 
ing  it  statutory.  It  places  a  statutory  clause  the 
provision,  in  certain  cases,  for  accident  —  as  one  of  tin- 
conditions  a  master  must  observe  if  he  wishes  to  engage 

in   husin  The  liability   is   made   to   arise   not    from 

any  tort  upon  the  part  of  the  master,  but  upon  the  in- 
herent nature  of  the  modern  economic  situation.149  It  i> 
not  claimed  that  the  master  ought  to  pay  because  he 
gets  the  benefit  of  his  servants9  Works,  any  more  tl> 
under  the  old  doctrine  of  common  employment  the  judges 
would    have   argued,   that    the   workers   ought    to   pay    bt 

cau^e  they  had  the  privilege  of  being  employed. 

The  fact  is  that  eighty  years  have  passed  since  Priestley 

y.   Fatclcr,  and   our   social    ideas    have    not    stood    ^till    in 
that    interval.      The  state   has    been    brought    to   ask    its,  if 
how   the  safety  of  the   WOrk<  rs   and  their   families   uiav    !>• 
best    a88Ured,  and   it    has   returned    its   answer.      It    is   un- 

1,7   For   mere    drastically    adverse    criticism    of    the    principle    sir 
Mignaolt  in  44  Am.  I..  Rev.  719j  Hinchfeld  in  \S  J<>ur.  S  mp. 

I     i.    W>:   and   seemingly,    Prof.    Dicey    in    /./..•   ,,„,!    Puhlir   Omimi 

PP.  38]  -*:  «f.  Holmes,  J.,  in  r.  S.  M  t,  Ml. 
i«i  cf  Pound,  26  Int.  Jour,  of  Bthie*,  p.  l. 
i«»  Just  as  special  liabilities  are  attached  t>>  carriers,  etc, 
\s  Prof,  Mechem  seems  t.»  think,  <>/>.  eit.  227,  241 


284       BASIS    OF    \  i(  rYRIOUS    LIABIUT, 

iK .  pi  to  Attempt  to  bring  the  theory  under  anj  of 
the  old  maxiniM  of  vicariooi  Liability.1  The  dogma 
underlying  it    maj    be  neu   or  it   may  l><    old;  we  need 

not    Ik*  th    concerned    either    at    its    novelty    or    itl 

antiquity.  The  question  to  which  we  have  to  reply  is 
■  \.i\  different  one.  The  test  of  our  rule  u  irhether 
it  affords  the  protection  thai  ii  intended.  Much  of  the 
tl  problem  is  obscured  by  discussion  <>f  ■  supposititious 
of  an  individual  employer  and  s  free  and  independ- 
ent irorkman  —  without  real  existence  in  the  industrial 
world  ire  know  and  then  asking,  if  the  former  is  to  be 
responsible  for  accidents  where  no  fault  is  anywhere  to 
be  discovered,  and  if  the  logic  of  the  law  of  torts  is 
thereby  to  be  destroyed.  We  cannot  sacrifice  social 
necessity  to  the  logic  of  the  law  of  torts.  The  crux  of 
this    problem    is    the   economic   need   of   preventing   the 

cheapening  of  human  life,1  '"  and  to  tli.it  end  our  law  must 
shape    itself.      We   need    not    fear    very   greatly    that    the 

imposition  of  such  liability  on  building  contractors,  for 
example,  will  force  them  oul  of  business;1  for  the  cost 
of  labor  has  a  convenient  habit  of  expressing  itMlf  in 
terms  of   pri<  Nor  can   we   n  jt    content   with   the   Wg- 

ition  of  a  distinguished  jurist  '  '  that  it  is  expedient 
to  let  accidental  loss  lie  where  it  falls.  That  may  be 
an  admirable  maxim  in  the  case  of  a  stricken  millionaire  ; 
but  it  is  of  too  hard  consequence  where  the  sufferer  has 

dy  dependents. 

It  seems,  on  the  whole,  a  better  policy  to  set  our  fa< 

\s    JndgC    Smith    is    anxious    to    compel    us    to    do.      J7    Ihirv. 

I..  /:•:■.  854 

if.    HvteUm    ft    Harrison,    Hislnrji    o/    Factory    L,-./i*Uit\»n, 

MM  ff. 

Qalna  v.  Crinmingi  (1898)  171  Mssa  MS,  J58. 

1   Holm-    .    I  he  Common   Law,  94   tr. 


BASIS    OF    VICARIOUS    LIABILITY 

firmly  forward]  and  ihape  the  character  of  our  law  l>v 
the  ends  it  has  to  terve.  In  itich  an  aspect,  if  ire  admit 
that  the  state  lias  the  right,  on  grounds  of  public  policyf 
to  condition  the  industrial  process,  it  becomes  apparent 
that   the  basis  of  the  vicarious  liability  is  not   tortious 

at   all;  nor,  since  it    is  withdraun   from   the  ana   of  agTI 
DOent,    is    it    contractual.       It     is    limply    B    statutory    pro- 
tection the  state  chooses  to  offer  its  workers.     Whether, 
as  such,  it  so  discriminate  -  againsl   the  employing  <l.i 
a>  to  come  within  the  -cope  of  measures  contemplated  by 
the  Fourteenth  Amendment,  is  another  and  a  very  diff< 

ent    question.      If    we    believe    that    it    is    not    an    infrin: 

men!  of  liberty  to  read  its  meaning  in  its  social  context. 
we  shall  perhaps  be  in  no  doubt  as  to  the  rightness  of  i 
negative  respon         rVe  shall  then  argue  thai   no  other 
possibility  in  reality  exists  at  the  presenl  tiin-  .     We  ha 
to  ininimi/e  the  lo^s  consequenl   upon  the  need-  of  life. 
The  principles  of  law  must  be  subordinate  to  that  effort. 

VII 

There  seems  no  valid  <i  priori  reason  why  the  operation 
of  our  principles  should  cease  at  that  border  where  tort 
becomes  crime.  Jet  us  non  fodt  rcum  nisi  SUM  tea  may 
be  admirable  in  a  state  of  nature;  but  it  will  not  tit  the 
facts    of    a    complex    social    structure.      So    that    we    need 

fear  no  diHiculties  at  the  outset.     The  case  is  <>f  course 

obvious  where  the  crime  is  performed  upon  specific  au- 
thority,1 ''  or  is  that   natural  and  inevitable  consequence 

of    the    servant's    business.1'        The    real    problems,    as    in 
iss  8  Green,  ('<>ll.  Work;  :J70. 

156  U.  S.  T-.   Nunn.iii.ulirr   (is?*:)   7   Hiss.  111. 

\,  in  tin-  ee  «  <»t  bookseller9!  assistant  dealing  with   i  UbeQom 
publication.    Wilson  9.  Rankin  (1866)  0  B   (  B,  v<  r  Cockbnrn, 

0.  J. 


286        BASIS    OF    VKWIUOIS    LIABILITY 

tli<  ise  of  <iniI  liability,  arise  irhere  the  doctrine  of 
implied  Authority  begins  to  pale  iti  ineffectual  lire  before 

the  difficult  its  if    has   to  confront. 

Everything,  if  11  dear,  dependi  upon  the  nature  of  the 

crime.  \\Y  shall  not  easily,  for  instance,  charge  a  cor- 
poration \sith  mu r<  1«  r ;  hut  if  a  company9!  servants,  act- 
ing for  their  mast*  r*i  benefit,  send  a  gatling  gun  mounted 

upon   an   armored    train    through   a   tillage   at    night,lM   it 

is  neceasary   to  enforce  adequate  penalties  against    the 
of  such  a  crime.     Again,  ire  have  statute!  regu- 
lating the  sale  of  liquor  which  are  notoriously  difficult 

to  enforce.  It  is  found  essential,  in  these  cases,  to  insist 
on  the  full   responsibility  of  the  license  if  the  law   is  to  be 

of  an\  avail.11       Lord  Alverstone,  indeed,  has  endeavored 

to    formulate  certain   canons   by    which    the   breach   of   law 

may  be  tested;1     hut  they  can  hardly  he  said  to  have 

much    practical    worth.      The    point    at    issue  in    this   class 

of  crime   is   simply  and   surely   the  enforcement  of   the 

law,  and  it  may  generally  be  BUgge8ted  that  the  necessities 

of  the  case  do  not  admit  of  our  inquiring  too  closely  into 

the  delicate  niceties  of  the  situation.101      Society  lias  not 

usually    .suffered    from    a    reasonable    vigilance    towards 

saloon  keepers.  And  the  same  rule  holds  good  when  we 
pass  the  narrow  line  from  drink   to  cards. "'- 

\W  uiusf  have  our  food  protected  ;  and  that,  irrespective 
of  the  vendor'!  motive.     It  is  here  not  merely  a  question 

-  I.i|»|>iii.mn,  Drift  toad  Matttry,  j>.  90. 

•  81  <t,   p.  P  ig  a  (  1009)  71    \tl.  (Del)  <i(J3. 
i«o  Bmorj  v.  Nnllnth  [1006]  2  K.  B.  964, 

ie>   Cf.  fmu.v.r,  ('..in.  r.    Riley   (  1<><>7)    !!><;   Mas,.  00. 

(ril.tr.r  f.    Ilnlr    flsT'i)    \:\  J.    I>.   77!»:    Bond   t.    F.vans    (1888) 

91  <«>  B.  D  240.    The  remarki  of  Stephen,  f  ,  on  tin-  itrange  dectotoa 

in    N'.wii,  !  (1886)     17   ()     B.    I>     I'-     ire    particularly    n.it.-- 

iroi  thy. 


BASIS    OF    VICARIOUS    LIABILITY 

of    whether    knowledge   on    the    master  \    part     ina\     I 

iumed|  <"'  whether  the  provision  «»f  food  i.  so  dangi  rous 
an  occupation  m  to  require  special  diligence,  '  hut 
■imply  that  the  consequence  i  of  the  alternative  to  a  ifc  m 
treatmenl  an-  too  serious  t«»  1»'  admissible.     Arguments 

as  to  the  reality  of  a  corporate  mind  '       pale  into  Insig- 
nificance before  the  problem  «»f  public  health.     W 
here,  beyond  the  stage  srhere  it  is  Biifficienl  to  know  thai 
reasonable  care  iras  exercised.     It  is  essentially  tin  con* 

quences  of  action  with  which  ire  have  to  dial.  for 
where  public  policy  has  such  vital  ends  to  serve  it  cannot 

rest  content  with  the  eas\-  fatalism  of  good  int  I  nt  ion.1*57 
We  dare  not  risk  the  nullification  of  our  needs.  We  au- 
thorize  the   master   to   sell    in   set    fashion,   and    if   the   law 

is  broken  he  must  take  tlu-  consequences.         t  i        such 
as   these   must   clearly    stand   upon   a   special    footing. 
'•Where  the  statute,"  says  the  court  in  an  Irish  case, 
"creates  a  direct  and  unqualified  duty,  the  person  to  per 

form  the  duty  cannot   escape  under  the  doctrine  of   0ISHI 

rcn."       Protection   were  otherwise   an    impossible    task. 
Parallel   with  such   a  situation   is   the   law   in    regard   to 

lei  Kelson  v.  Parkhill  (1892)  20  8c  Seas  Cms.  Ufa  Series,  j>.  24s 
Brown  v.  Foo4   ( 1892)  86  L.  T.  \.  S.  840. 

i«4   R.  7-.  I)ixf)ii  (1814)  B  M.  ft  S.   II. 

i«5   IYarks   r.    Want    [1002]    2    K.    B.    1;   Chutrr    0.    Fn-.-th    [1011] 
2  K.   R.  6 

Cf.  however,  Kearky  v.  Taylor  (1801)  U  L  T.  v  S.  26]  for 
a  ease  where  distinct  disobedience  to  exprees  <>ni<  m  wa  i  held  an 
admissible  defend 

Bee  the  judgment   In   rloaford  r.   Mackey   Ms,,7]   2   Ir.  I 
Lehman  7'.  Dlat  of  Colombia  |  1002)  19  app.  D.  C  jit. 

Bee  the  rerj  able  jodgmenl  In  SUte  p.  KetteUe  (1802)  in> 
N.  c.  ixi  tii.it  in  Com.  v.  Savory  (1887)   145  Mass.  212 

i«o  Pftsgerald  v.  Hoaford   (1900)  9  ir.  Rep.  B0L    Cf.  the  Judg- 
ment of  cfiannrii,  J.,  in  Anglo-American  *  *  i  1  Co,  v.  Manning  (i!1  S 
1  K.  B.  B8& 


888       BASIS    OF    VICARIOUS    LIABILITY 

libel.       It     I  wis    Ix  .  n    lon/j    aiid    well    settled    that    a    master 

—  in  the  absence  of  statutes  to  the  contrary  —  is   n 
iponsible  for  the  criminal  libels  committed  by  hi^  lerv- 
ant    uitlinut    bis   knowledge  or   consent.11      Those   irho 
nave  the  control  < » f  books  and  newspapers  in  their  hands 

haw  a  weapon  too  powerful  to  hear  no  more  respon- 
sibility  than   thai    of  guiltj   intent.      It    IB   not    merely,  M 

Tenterden,  C.  J,,  argued,  thai  the  proprietor  of  a  book- 
shop or  of  a  newspaper  oughi  to  pay  because  be  enjoyi 

tlu    profits   of   the  enterprise,171    the   fact    i^,   that    damage 

by  publication  is  rery  Largely  an  irreparable  damage,11 

and  that  the  law  must  protect  the  interest  of  personality 
a-   besi    it    may.173 

Nor  ou^ht  the  corporation  to  avoid   responsibility  on 
the  ground  that  it  is   mindless.174      Such   a   view   has  Long 

l>e<  n   regarded  as  untenable.     No  one  would  dream  of 

accusing  a  corporation  of  adultery,  but  there  are  often 
clearly    to   be   attributed    to    it    where    the    act    is    directly 
performed   by   its   servants.      "We  think/'   said  a   strong 
court,17"''  "that   a  corporation  may   be   criminally  liable 

for  certain  ofVenei ■>  of  which  a  specific  intent  may  be  a 
necessary  element.  There  is  no  more  difficulty  in  im- 
puting to  a  corporation  a  specific  intent  in  criminal  pro- 

edinga  than  in  civil.     A  corporation  cannot  be  arrested 
and   imprisoned  in  either  civil  or  criminal   proceedings; 

hut    its  property  may  lie  taken  either  in  compensation 

ite  EL  v.  Willi. in.    (\-,:\)   Lofft,  7«9{   EL   v.  Topham    (1791)    \ 
T.  EL  196i  EL  v.  Alexander  (1829)  Mood  ft  M.  W7. 
i7i    \  i  i,  u.ii  ihown  in  the  Mylta    i 
iti  h.  v.  Gntch  (1899)  Mood  ft  M.  I 

The  limitation  of  6  ft  ~  Vict  Ch.  96  ibould  be  noted 
174  \\u\\,  c.  ,t„  in   r_'  Mod  959   (1702) j  State  v.  Greal   Works 
Millin-  ft  Mfg.  Co,  (1841)  90  Me.  ti. 

Telegram  Newspaper  Co.  v.  Commonwealth  (isoi>)  1:2  Mass. 

994 


BASIS    OF    VICARIOUS    LIABILITY       289 

for  a  private  srrong,  or  as  punishmenl  f<>i-  ■  public 
wrong.9*     lioti   people  would  Agree  tliat   common   sense 

is  on  the  ride  <>f  inch  an  attitude*  It  would  !><•  intoler- 
able if  corporate  enterprise  <li<l  noi  imply  corporate  i 

■ponsibility.  It  is  the  determining  factor  in  the  action 
of  the  servants  who  commit  the  crime  on  its  behalf;  so, 

in  a  loiii^  series  of  cases,  the  rule  lias  been  extended  from 
the  analogy  of  the  individual.170  \W  have  not  yet,  in- 
deed, been  able  to  make  criminal  negligence  extend  to  the 
point  of  manslaughter;171  though  perhaps  it  may  !><• 
suggested  thai  with  the  admission  by  an  Australian  court 
of  corporate  mens  rea9tn  there  are  real  possibilities  of 
progress.  It  is  not  until  we  have  admitted  the  necessity 
of  completely  equating  group-action  with  individual  ac- 
tion in  its  social  aspects  that  we  can  remain  content. 
It  is,  indeed,  a  happy  augury,  that  this  line  of  thought 
should  have  been  declared  constitutional   by  the  Supreme 

Court  of  the  United  States.1"  It  is  difficult  to  take  very 
seriously  the  plea  of  Mr.  Baty,  that  "even  if  the  results 
of  summary  process  are  not  very  Berious,  they  involve 

in  the  minds  of  ignorant  persons  a  certain  amount  of 
discredit."  18a      Law   is  not   made  to  suit  the  wrong  notions 

of  ignorant  persons.     The  real  problem  is  simply  whether 

u.     dare   afford    to    lose   such    hold    as    we    possess    OVer    the 

action  of  groups  in  the  affairs  of  social  life  —  the  more 

particularly   in   an   age   predominantly   associational    in 

its  Misfeasance  in  H.  v.  Brim,  ft  d.  Ry,  Co,  (1842)  8  <).  B.  228  j 
obstruction  In  K.  v.  G.  N.  Ry.  Co,  (1846)  9  Q.  B.  815;  under  the 
Lotteries  Ad  in  Hawke  v.  Hnlton  [MOO]  9  K.  B.  98  are  typical 
« i  imples. 

m  H.  v.  ('..   w.   Laundry  Ca    (1900)    19   Manitoba,  06;    Union 
Colliery  Ca  v.  Qneen  (1900)  81  Can.  Sup.  Ct  si 
i:    i    P  tnton,  M  Vict  L  Rep.  B 

iw  V  V.  <     8  II.  Ry.  i  o   ;     r.  S.  (1808)  919  U.  S.   I8L 

180    Baty,    „,,.    cit.    JIM. 


290       BASIS    OF    VICARIOUS    LIABILITY 

character.11        It     is,    for    the    most     part,    a    commercial 

problem  consequent    upon   the  dissolution  of   individual 
industrial  action.1*1    It;  solution  in  the  future  must  de- 
I" ml    upon    ouf    manner    of    interpreting    the    busim 
fund  ions. 

VIII 

What  has  been  here  attempted  is,  in  fact,  ■  part  of 
the  sociological  analysis  of  law.  We  do  not  sufficiently 
realize  bon  greatly  our  legal  ideaa  bave  been  afl'ected  l>\ 
their  peculiar  relation  to  the  history  of  landed  property. 
Primitive   jurisprudence   concerns    itself,    for   the    most 

part,    with    the    protection    of    individual    rights.      Certain 

nun  are  blameworthy;  they  have  invaded  the  property 
of  other  men.  It  is  then  necessary  to  obtain  protection 
against  them.     Thai  ancient  hut  tenacious  individualism 

IS  in  truth  the  coronation  of  anarchy;  and  the  time  conns 

when  a  spirit  of  community  supersedes  it.  Hut  either 
because  that  notion  is  prematurely  horn,  or  else  because 

it    is    inadequately    translated    into    terms   of   actual    life, 

it  results  in  the  cramping  of  single-handed  effort.  It 
passes  away;  and  the  consequence  is  the  beatification  of 
laissez-faire.  Hut  it  becomes  increasingly  evident  that 
society    he   governed   on    the   principles   of   commercial 

nihilism.      To   assume  that   freedom   and   equality   consist 

in  unlimited  competition  is  simply  to  travesty  the  facts. 
1-1  This  is  especially  true  <>f  the  United  states.    Cf.  De  Toeque- 

\ille\   rnnarks   in  'J   Ih,„.>r.   in    .h„>rir,i.  97   ff.    (trans.    Urcvr,   1880) 

arbleh  are  even  more  accurate  at  tin-  present  time. 

Perhaps  also  of  great  ecclesiastical  corporatlonSi  cf.  Rrown  t». 
Montreal  m^tm  <;  P.  G  107.  Something  of  the  same  Issue  Is  Involved 
in  Ptrst  Church  «»f  Christ,  Scientist,  applie.  <»f  (is«»7)  c;  Pa  Wet 

(  t     7  r>.  and   tin-  similar  applied  iOD   in  90S    I'a.   M8. 

ii    Mr.  Justice  Brandela  in  his  Burintu  s  Profusion,  i>as>im. 


BASIS    OF    VICARIOUS    LIABILITY       291 

\\  i  cone  oocc  more  to  an  age  of  collective  endeavor* 
We  begin  tin-  re-interpretation  of  law  in  the  terms  of  our 
collective  nerds. 

Novelty  for  our  principles,  ire  may  not  in  tome  lorl 
deny;  though,  in  truth,  if  ii  is  by  history  that  w»  are 
to  be  judged  ■  plethora  <>t  antiquarianism  might  not  be 
•ranting.1*4  Hut  it  is  on  different  ground  that  ire  take 
our  stand.     It  is  our  business  to  set  law   to  the  rhythm 

of  modern   life.      It    is   the  harmonization   of   warring   in 

terests  irith  irhich  ire  are  concerned.  I  low  to  evolve 
from  a  seeming  conflict  the  social  gain  it  is  the  endeavor 
of  law  to  promote  —  this  is  the  problem  by  irhich  ire  are 
confronted.  We  would  base  our  legal  decisions  not  on 
the  facte  of  yesterday,  hut  on  the  possibilities  of  to-mor- 
row. \\Y  would  seek  the  welfare  of  society  in  the  prin- 
ciples we  enunciate.  We  have  been  told  on  the  highest 
authority  that  no  other  matter  is  entitled  to  be  weighed.1' 

is*  Cf.  the  articles  of  Dean  Wigtnore  cited  above. 
im  Holmes,  .J.,  In  8  Uarv,  L.  R*v.  9. 


THE   POLITICAL   IDEAS  OF  JAMES  I*' 


Tim  study  of  political  ideas  has  been  unduly  neglected 
in  English-speaking  countries.  \\ »  have  no  Buch  history  as 
Gierke's  magistral  survey  of  German  associations,  though 
our  group-life  Is  even  more  prodigal  of  riches  than  thai 
w  1 1 id i  he  recounted.  No  English  monograph  exists  com- 
parable with  his  study  of  Althusius,  though  the  thought 
of  Locke,  to  take  only  a  Bingle  example,  provides  the 
materials  for  ■  nol  Less  magnificent  analysis.  Two  bril- 
liant volumes  of  Figgis,  a  classic  preface  of  Maitland, 
some  penetrating  criticism  of  Leslie  Stephen,  a  solid  essay 
hv  Gooch  -  these  represent  almost  the  whole  of  what  may 
be  rated  as  of  first  importance.  The  kind  of  work  so 
admirably  done  in  France  by  Henri  Michel  and  Dreyfus- 
Brissac  has  so  far  found  no  imitators  lithe]-  in  England 

or   Ann  lica.      It    is  a  curious  negligence,   for  the  history 

of   political    ideas    is   v,)   closely    related   to   that   history   of 

political    structure    in    which    Anglo-Saxon    writers    excel 

to  make  explanation  or  excuse  at  least  doubly  difficult. 

Nor  should  an  America  that  is  plethoric  in  political  ex- 
periment be  backward  in  tracing  its  affiliations;  Harring- 
ton and  Locke  and  Montesquieu  thought  to  the  purpose 
of  a  Later  generation. 

*  Reprinted  from  the  Political  Sri,  nn  (f>u<irtrrli/,  Vol.  XXXIV, 
No   •_'. 

i  T%  I'.'iitirni  Works  of  Jmmot  /.  Edited  i>>  Charles  Howard 
Mcllwain.    Cambridge,  Harvard  (Jnfoerslti  Press,  n»  18 — e\i.  -i~A  pp. 

902 


POLITICAL    IDEAS    OF    JAMES    I        89a 

Professor  McDwain'a  volume  ii  in  tin  right  traditioiL 
It  is,  Ik  tells  u>,  the  first  of  a  series  in  irhich  he  and  his 
colleagues  propose  to  reprint  those  volumes  thai  most  of 
us  have  hoped  to     •  one  day  in  a  bookseller's  catalogue. 

Nothing    is   so  greatly    needed    M    to    make   accessible    Hii' 

classic  texts  of  the  Renaissance  and  Reformation,     Tin 
existing  copies  <»f  Althusius'  hook  cannot  exceed  a  score 

m  Dumber;  only  one  copy,  at  least ,  has  found  iti  waj  into 
an  American  public-  library.  The  I)t  Concordantia 
CathoUca  of  the  great  Cardinal  of  Cusa,  the  Vindiciae  of 
I)uj)l«  >>i^  Mornay,  the  1)c  Jutta  Potestate  of  Rossaeus, 
—  these  and  books  like  these  we  must  have  at  our  elbow 
if  we  are  to  understand  th<'  foundations  of  the  modern 

state.      After  three  eentur'n *  we  OUght,  at    hast,  to  make 

vaunt  that  we  have  outstripped  the  massive  complications 
of  Melchior  Goldast;  yet   Professor   McEwain   tells   dj 

that  later  Volumes  must  depend  upon  the  suer.  ^-  of  hia 
Own.  And  if  we  are  to  be  honest,  we  must  admit  that 
this  postpones  indefinitely  the  likelihood  of  their  appear- 
ance, for  we  lack  that  gdehrte*  publicum  to  whom  such 

a  volume  is  an  event.      Yet    it    is  books  like  these  we  must 

have  if  historical  science  is  to  attain  its  ripest    fruits 

Professor  Mcllwain  merely  reprints  the  works  of  Jam. 
from   the   Standard   edition   of   1616,   but    he   adds    thereto 

a  preface  of  some  hundred  quarto  pages.  An  English- 
man   may    be    allowed    the    remark    that    it    is    the    most 

admirable  contribution  to  its  subject  that  has  been  made 
bv  an  American  scholar.     It   is  at  every  point   learned 

and    exact,    and    it    is    ranlv    indeed    that    it    IS    not    con 

vincing.  Its  main  value  lies  not  so  much  in  the  appraisal 
of  James9  ideas,  to  which  little  attention  is  given,  as 
in  the  attempt  to  set  them  in  their  historic  perspective 
Something  of  this,  indeed,  Dr.  Figgis  had  accomplished 


294        POLITICAL    [DBAS   OF   JAMES    I 

in  Ins  Divine  Right  of  Kimg$;  but  to  him  the  theories  of 
James  prere  ■  relatively  unimportanl  incident,  vrhere  to 
Professor  Mcllwain  thej  lerve  to  demonstrate  thai  Eng- 
land was  plunged  into  the  midstream  of  European  j >< >  1 1 1 - 
1  thought.  His  narrative  is,  in  fact,  a  full  demonstra- 
tion of  the  reason  why,  in  the  greal  counter  movemenl  to 
reform,  England,  together  with  Holland,  irai  alone  able 

to  avoid  the  primrose  path  of  bun  ain  rat  ic  absolutism. 
Little  of  what  Professor  .McIIwain  lias  to  >av  is  actually 
DCW,  and  lie  rarely  Attempts  it>  evaluation.  Hut  his  in- 
sistence upon  More  and  Campanella  as  masters  of  the 
controversial  art  is  particularly  arresting,  and  it  forms 
a  welconx  antithesis  to  the  conventional  picture  of  two 
dreamy  idealists  weaving  the  vision  of  a  fabulous  empire* 

Nor  uuist  we  miss  the  illuminating  appendix  upon  the 
political  literature  of  the  Tudors.  No  one  acquainted 
with  that  Literature  can  doubi  that  Professor  Mcllwain 
is  right  when  he  argues  that    political   theory  in   England 

begins  with   William   Tyndale.     Fortescue   is   concerned 

with   PoUtik;   it   is  Tyndale's  Obedience  of  <i  Christian 

Man  which  lays  the  foundation  of  an   English  stanf  sit  h rr. 

That  is  a  valuable  note  to  strike,  for  it  rightly  emphasize  - 

at  once  the  roots  from  which  the  modern  English  state 
has  sprung  and  the  main  political  problem  which  it  is 
the    business  of  each  a^e  to  answer. 

II 

That    problem    is    the    ground    of    obedience.     The 
sp<        !c  of  the  voluntary  submission  <>f  vasl  numbers  to 

a  small  portion  of  themselves  i^  an  arresting  one;  for, 
as  Ilium  remarked,  ultimate  force  is  always  on  the  side 
of  the  governed.      The   problem  of  securing  unity  in  the 

ite  i>  always  typical  <>f  an  age  of  crisis;  and  it  was  to 


POLITICAL    IDEAS   OF   JAMES   I 

solve  it  that  the  thinkers  of  the  Counter  Reformation 
above  all  struggled.  Luther  had  broken  into  pi<  the 
Christian  Commonwealth  of  the  medieval  period;  the 
religious  wars  had  completed  the  disintegration  of  feudal- 
ism which  the  nationalist  tendencies  of  the  previous  cen- 
tury had  begun.  "With  the  idea  of  the  Commonwealth" 
—  Professor  Mcllwain  is  speaking  of  the  new  state  de 
scribed  by  Bodin  —  "had  come  the  need  of  re  ttating  the 
relations  of  its  parts  with  one  another,  in  particular, 
those  of  the  King  with  bis  subjects."  It  was  do  « 
task.  The  period  of  the  Counter-Reformation  shows 
everywhere  a  passionate  worship  of  unity;  even  the 
Politique*  embrace  toleration  on  the  low  ground  of  ex- 
pediency. "Diversity  in  an  age  of  uniformity,*1  says 
Professor  Mcllwain,  "inevitably  brings  persecution,  and 
tin    acceptance  of  uniformity  as  a  principle  means  that 

each  party  demands  the  supremacy  of  its  OWU  doctrim  >." 
The  questions  thus  raised  are  amongst  the  profound*  >t 
thai  have  troubled  mankind.  How  can  a  Catholic  give 
Elizabeth  her  due  allegiance  when  Pius  V  has  urged  ber 

dethronement  as  a  heretic?  What,  in  an  age  when 
Au«^sl)ur^   had   consecrated   at    least   one  heresy,  is   to  be 

the  nature  of  tin-  papal  power?     What   is  the  bond  by 

which    the    new    state    is    to    maintain    its    hold    upon    its 

subjects?  The  problem  did  not  confront  the  Romanists 
alone.  Presbyterianism,  at  hast  in  its  Scottish  develop- 
ment, insisted  upon  the  separation  <>f  the  "two  kingdoms," 
and  the  allegiance  of  its  adherents  to  a  seculaT  sovereign 
could  never  he  entire.  The  Calvinists  under  Henry  III 
found  themselves  preaching  the  sovereignty  of  tin-  people 
and  under  Henry  of  Navarre  the  divine  righl  of  kings, 
Yt  t   each  group  <>f  thinkers  is  so  convinced  of  its  own 

rightness    that,     Robert     BrOWn    and     William     the    Sihnt 


296        POLITICAL    ll)l.\s    OF    JAMES    I 

Apart)    tin     idea]    <>l    liberty    <tf    conscience,    as    a    human 

right,  Is  for  them  largely  without   meaning.     The  effort 

i^    bo    rewin    the    unit  \    which    tin-    facts   have    thrown   into 

j<  opardj . 

It    is   from   thai   effort    that    the  chief  hypotheses  of 

mode  in    politics    an-    horn.      The    divine    right    of    kings, 

the  wvi  reignty  <>i  the  people,  the  social  contract,  the  con- 
ception of  power  aa  by  Its  nature  a  trust,  are  all  of 
them  answers  to  the  questions  of  why  and  in  what  degree 
men  must  obey  their  rulers.  The  Counter-Reformation 
is  thus  the  parent  at  once  of  liberal  doctrine  and  absolu- 
tism. The  persecuted,  whether  Jesuit  or  Puritan,  be- 
come the  inevitable  creators  of  principles  that  make  for 
the  redistribution  of  political  power.  They  are  driven 
to  revolutionary  hypotheses  as  the  necessary  condition 
of  survival.  Men  like  I  lot  man  and  Buchanan  deny  the 
divinity  of  kings  simply  because  they  fear  that  kings  will 
uproot   their  faith.     Tower,  so  they  urge,  is  dependent 

upon  conditions  and  the  people  must  determine  the  nature 
of  those  conditions.  The  retort  is  obvious  when  a 
Protestant  is  on  the  throne;  and  Boucher  and  Rossaeus 
do  not  fail  to  make  it.  For  if  power  is  ultimately  in 
the  people  and  if  the  object  of  the  Btate  IS  virtue,  clearly 

enough  the  people  will   not   tolerate  a  heretic  upon  the 

throne,  for  bis   faith  is  incompatible  with  a  virtue  which 

is  defined  by  the  decrees  of  Trent. 

Only  «>ne  answer  was  possible  to  such  an  outlook,  and 
that  was  the  assertion  of  the  self-sufficiency  of  the  civil 

power.      Separation  of  church  and  state  is  only  one  side 

of  that  hypothesis,  for  it  was  still  possible  and  still 
widely  deemed  desirable  to  put  the  state  in  place  of  the 
medieval  church  and  make  its  boundaries  coextensive  with 

the   limits   of   mind.      That,   at    least,   IS   the    theory    which 


POLITICAL    IDEAS    OF    JAMES    I        297 
eventually  Lies  at   the  bottom  of  practices  hk«    tho*    of 

Whiigift    and    Ham  roll     and    Laud.       Hut     there    Wen     at 

leasi  two  groups  <>i  thinkers  for  whom  such  Acceptance 
u.is  impossible.  No  Catholic  could  admit  thai  obedience 
was  doe,  at  least  in  religious  matters,  to  s  heretic.  So 
Presbyterian  could  accept  the  implicit  Byzantinism  of 
the  Act  of  Supremacy ;  nor  did  what  Maitland  termed  the 
genial  MetceterationM  of  Elizabeth  make  their  problem 
in  anv  wise  easi<  r.  Kings,  for  both,  might  rule  by  divine 
right,  but  it  was  only  10  long  .^  they  confined  themselves 
to  the  secular  domain. 

It  thus  Beemed  thai  the  problem  of  unity  confronted 
from  the  outsei   an  impossible  dilemma.     The   Anglican 

state  could,  from  at   hast  half  its  memfo  rs,  I  saci   an  all- 

giance  at  no  moment  undivided  or  entire;  and  Elizabeth, 
as  Cecil  argued,  seemed,  therefore,  driven  into  persecu- 
tion in  order  to  maintain  her  political  position.  A  mem- 
ber of  the  Anglican  Church  gave  bia  Queen  more  than 
Catholic  or  Puritan  gave.  For  him  there  was  no  corner 
of  the  Held  over  which  her  imperium  did  not  extend.  Hut 
each  royal  order  demanded  closi  icrutiny  alike  from 
Puritan  and  Romanist.  Their  obedience  had  in  it  an 
elemeni  of  contingency  which  to  the  upholders  of  unity 
made  it  both  doubtful   and  dangerous. 

The  problem  had  clearly  to  be  met;  and  th<  work  of 
showing  the  Doncontentious  character  of  the  papal  power 
is  mainly  a  construction  of  the  Jesuits.  Here,  indeed, 
ai  elsewhere,  they  were  adapters  rather  than  originators. 
They  owe  much  to  Buchanan  and  Melville,  more  perhaps 
than  they  would  own.  Hut  in  their  hands  political  theory 
iras  more  finely  wrouohi  and  more  Bubtlv  fashioned  than 

by  anv   thinker  of  the   time  ezcepi    Althusius.       Professor 

Mcllwain  admirably  i  tplains  the  character  of  their  effort. 


•jus        POLITICAL    IDEAS   OF   JAMES    I 

Hi  insists  upon  their  connection  with  the  schools  of 
Presbyterian     thought*      "Brought     Into    conflict,*1    he 

untrs,  "uitli  tin  power  of  secular  government!  th.it 
recognised  no  exemption  from  their  oversight,  the  Jesuits, 
who  had  become  tin-  chief  champiom  of  the  Catholic 
Church  and  the  Papacy,  irere  now  forced  as  the  Calvin- 
isti  had  already  been  to  develop  doctrines  of  a  limitation 
of  royal  power  in  the  int.  n  its  of  the  people,  on  flu-  one 
hand,  ami  on  the  other  of  a  separation  of  the  fields  of  ec 
cl<  liastical  and  secular  jurisdiction."  They  aimed,  in  fact, 

a    \ital    Mow    at    the  di\ine    righl    of   kings ;  and    works   like 

Parsons'  Conference  <>n  the  Next  Succession  became  text- 
books for  democratic  writers.  Bui  on  the  ecclesiastical 
side  their  ta>k  was  an  impossible  one.     They  had  to  prove 

the    legitimate    character    of    a    papacy    which    would    imt 

surrender  one  jot  or  title  of  its  ancient  prerogative,  and 

it  was  this  which  led  Bellarininc  to  the  theory  of  the  in- 
direct   power.      It    is    B    vital    doctrine,    for    in    it,   even    if 

somewhat   concealed  by  the  polemic  of  the  time,  lie  the 
d  foundations  of  international  law.     Broadly  speaking, 
the  pope  is  regarded  as  standing  to  bis  subjects  in  Eng- 
land as  the  king  of  Prance  to  Frenchmen  resident  abroad. 

He  has,  that  is  to  say,  a  reserve  power  of  protection  which 

maltreatment,   or    potential    maltreatment,    may    call    into 

play.  Clearly,  therefore,  the  papal  attitude  to  a  foreign 
sovereign  will  depend  upon  the  religious  laws  he  may  fed 
const  rained  to  operate. 

It  is  a  doctrine  thai  brings  comfort  to  men  of  diverse 
views,  it  enabled  Parsons  t<>  had  the  party  of  no  com- 
promise on  the  ground  that  the  occupancy  of  the  throne 
by  a  luretic  immediately  brings  the  reserve  power  into 
]  lay.     In  enabled  men  like  Roger  Widdrington  to  argue 

that    the   loyalty   of   Catholics    is,   in    theory   at    least,   un- 

WW  W 


POLITICAL    !l)l   \s    OF   JAMES    I         299 

assailable  ,  since  <  \  i  n  f>\  I li«  Jesuits  t  h<-  \\U-  of  tin-  itaic  ii 
aiiiint t( ill v  divorced  from  thai  of  the  church.     The  dot 
trine,  of  course,  is  the  coronation  of  opportunism,  and 
Bishop  Andrewes  <IkI  not  hesitate  to  urge  that  I"  argue 
for  potential  power,  the  exercise  of  which  i>  dependent 

Upon  COndud  of  which  the  pope  only  can  In    judge,  is  <li 

structure  of  the  whole  theory  of  the  two  kingdoms.    The 

Catholic,  in   fact,  is   for  the   Protectant    not    less  a   traitor 

because   theory  can   put    bis   power  of  treason  ■  stage 

further    hack.      The    only    comment    We    can    make    is    the 

inference  drawn  by  Professor  Mcllwain.  The  Jesuits 
w<  re  not  toying  with  principle  i n  the  sense  of  caring  for 
it  lightly.  Their  motive  throughout  was  the  recovery 
of  the  papal  kingdom,  and  if  they  suited  their  statesman- 
ship to  the  hard  demands  of  necessity,  only  the  most  hitter 
will  blame  them,  for  they  worked  with  the  baiter  around 
their  necks.  "A  sixteenth  century  Jesuit/'  as  Professor 
Mcllwain  remarks,  "might  be  a  traitor,  but  his  J-,  riot  the 
character  of  a  trimmer.'"  He  might  Buit  his  sails  to  the 
varying  winds,  but  he  had  no  doubt  whatever  of  his  harbor. 

Certain   at    hast    it    is   that    the  work   of   the   .Jesuits    in 

England  precipitated  the  controversy  which  produced 
the  main  body  of  political  theory  in  England  for  a  genera- 
tion. They  split  the  English  Catholics  into  ,<i  party 
whose  attitude  resembles  that  of  the  Politiquei  in  Prance 

and  one  which  had  the  single  ideal  of  restoring  at  any 
cost   the  pope  to  his  ancient    kingdom.      They   fought,  as 

any  one  who  reads  Christopher  Bagshaw's  True  Relation 

can    sic,   with   a  bitterness   thai    not    even    the   antagonism 

between  Protestant  and  Catholic  surpassed.  The  ex- 
tremists wen  converts  to  Rome  and,  like  all  converts, 
optimistic.  Parsons  himself  seems  never  to  have  doubted 
that    England   would  lie  prostrate  beneath  the  bed   of 


300        POLITICAL    IDEAS    OP    JAMES    I 

Home  could  Philip  hut  safely  land  [lis  army.  N  kturallv 
enough,    it    was    to    this    party    that    the    pop€f    th«m-«l\ 

inclined;  and  the  victory  of  the  Jesuit*  over  th<  leculari 
virtually  involved  the  resort  of  Elizabeth  to  persecution 
and  tli*-  growing  emergence  of  the  idea  of  divine  right. 

The  indirect  power  rune  almost  at  once  to  involve  the 
deposition  of  heretical  kings;  and  the  problem  in  Eng- 
land  iras  more  acute  for  all  parties  bj  reason  <>f  the 
obvious  possibility  that  the  succession  mi^ht  be  disputed. 

And  at  a  time  when,  in  the  face  of  the  theory  of  ><  p.uatr 

powers,  Elizabeth,  despite  her  "etceteration,"  was  mosi 

patently  supreme  governor  of  the  church,  it  .seemed  char 

enough  that  a  thorough-going  definition  of  allegiance  i 
neoessarv  when  the  .stake  was  the  English  Kingdom.    The 

Jesuits  lav  at  the  hack  of  treason  and  plot.  Their  very 
determination  was  the  parent  of  the  divine  right  of  kings. 
The  situation,  in  fact,  was  akin  to  that  of  Luther. 
When  a  divine  institution  refuses  -elf-reformation,  the 
divinity  of  the  means  of  cure  wit  obviously  demands  its 
proof.  So  Luther  asserted  the  divine  right  of  the  Ger- 
man princes  and,  perhaps  as  an  after-thought .  the  affinity 
of  Rome  with  Antichrist.  That  Elizabeth,  two  genera- 
tions later,  had  a  dilemma  to  face  hardly  less  tragic  in 
nowise  eased  the  Catholic  position.  "The  historian."  as 
Professor  Mcllwain  say-,  "ought  to  see  a  clash  of  irrec- 
oncilable principles;  a  contest  for  absolute  power  over 
an  undefined  field  by  two  jure  dirino  authorities,  the  King 
and  the  Supreme  Pontiff."  There  could  be  no  settlement 
in  an  age  where  diversity  was  sin  and  unity  the  most  ad- 
mirable of  virtues.  It  needed  the  bitter  experience  of 
Civil  war  at  home  and  foreign  eontlict  abroad  to  make 
men  willing  to  explore  the  possibilities  of  that  toleration 
for  which   stout   citizens  of   London  like  Leonard    Bushcr 


POLITICAL    IDEAS    OF    JAMES    I         801 

and    forgotten    enthusiast*    like    Samuel    Richardson 
nobly  contended.     Even  then  it   needed  the  drastic  ur- 
gency of  William  III  to  persuade  an  unwilling  people  to 
the  experiment. 

in 

It    is   in   such   B   background    t  li.it    Professor    Mellwain 

seta  James  I  and  nil  ideas.  Throughout  1 1 i ^  life  the 
effort  of  James  is  no  more  than  a  variation  upon  u  single 
theme.  IN  Bingle  virtue  is  thai  consistency  against 
which  Sir  Henry  Maine  uttered  an  admirable,  if  ironic, 
warning;  and,  indeed,  the  dangers  of  consistency  have 
rarely    been   more   evident   than   in   the   thorough-going 

fashion  in  which  James  attempts  the  application  of  his 
doctrine.  Nor  can  there  be  any  doubt  as  to  the  meaning 
of  James1  absolutism.  It  was  never  altered  by  contact 
with  Dew  environment,  though  as  Welwood  points  out, 
it  may  have  originated  in  the  circumstances  of  his  youth. 
Melville  and  Buchanan  were  likelv  hv  repulsion  to  con- 
vince  James  of  the  nobility  of  his  office :  and  the  fate 
of   his   parents   may  well   have  attracted   him   to   theories 

which,  ideally  at  least,  put  kingship  beyond  the  censure 

of  the  mass  of  men.  The  divine  right  of  kings  meant  to 
dames    exactly    what    it    said.      "Kings,"    he    wrote,    "are 

the  breathing  images  of  God  upon  earth,"  and  he  strove 

to  give  the  hard  substance  of  fad  to  this  conception. 
He  admitted  no  limitations.      Even  an  evil  king  was   sent 

of  God  to  punish  his  people.     Inferior  office  was  derived 

from  the  royal  will.     Subjects  had  duties  without  rights. 

Lai    Was  the  affirmation  of  the  king's  desire.      The  power 

of  Parliament  was  the  duty  to  offer  its  advice  when  asked. 

And  it  is  char  enough  from  dames"  relations  with  the 
Puritans  that   h«'  welcomed   no  doctrine  and  no  institution 


POLITICAL    IDEAS   OF   JAMES    I 

««!  uliich  the  underlying  id<  ggested  even  a  penumbra 
of  independence,    Crown  and  state  wtn    interchangeable 

terms. 

I'rofrs.sor    Mcllwain    points    out    how    much    of    Scoto- 
Komunism  has  gone  into  these  COnc<  ptions,  and  it   is  char 

enough  that  they  are  irreconcilable  even  with  Tudor 
constitutionalism.  They  real  ultimately  upon  a  Imsis 
•  •I  feudal  theory  that  had  already  suffered  disintegration 
under  the  fonts  of  sixteenth  century  nationalism  and  of 
winch  the  obsolescence  is  made  manifest  in  the  Act  of 
1660  for  the  abolition  of  feudal  tenun  They  are  in- 
compatible with  a  const  it  ut  ion  which  had  alrcadv  wit- 
nessed the  deposition  of  two  kings  and  treasured  up 
Fundamental   law   over  a  period  of  four  hundred   years. 

Indeed,    as     Professor    Mcllwain    says,    the    real     root    of 

dunes*  difficulties  lies  in  the  fad  that  not  eren  twenty 
rears  of  difficult  government  enabled  him  to  understand 
the  English  constitution.  The  Trew  Law  of  Free  Mon- 
archies   is    his    Bible,    bui    neither    Puritans    nor    lawyers 

could    find    comfort    therein.      He    presupposed    a    people 

incapable  of  self-government  and  thereby  misunderstood 

the  political  instinct  of  his  generation.  He  was  an  ab- 
solutist amidst  a  people  whose  essentia]  genius  lay  in 
the  relativity  of  mitigation.  The  result  was  conflict  and 
inevitable  conflict;  nor  did  the  rigorous  antagonism  of 
his  Parliaments  teach  him  the  meaning  therein  implied. 
James9  theorv  needs  discussion  from  two  angles. 
Broadly  speaking,  he  was,  in  the  first  place,  urging  a 
special  theory  of  prerogative.  It  was  a  dangerous  effort, 
for  prerogative  has  a  history:  and  obstinate,  if  pedantic, 

lawyers    were    at    his    side    to    Urge    upon    dames    that     its 

meaning  was  to  he  discovered  in  its  origins.     Prerogative, 
Professor  Mcllwain  Bays,  may  have  been  high,  bui  it 


POLITICAL    IDEAS    OF    JAMES    I        808 

(forked  within  limits  reasonably  capable  of  effective  «l<ii 
nition.     It  u.i>  ess*  otially  a  n  s<  rve  power,  to  l>.   used,  in 
Blackstone's  i  \c.  Uenl  phraw  ,  Mou1  of  the  ordinary  eon: 
of   common   law."     Prerogative,   in    fact,   begins    where 
the  [an  ends;  and  it  is  over  the  vague  hinterland  «>f  con- 
fused disturbance  thai  sovereign  prerogative  is  intended 

to  act.      No  one  can  read  Staunton  or  Sir  Thomas  Smith, 

who,  after  all,  stand  outside  the  controversy  of  James9 
reign  and  have  no  case  to  plead,  wit  lion  t  seeing  thai  t<>  them 
the  essence  of  prerogative  is  jusl  this  admission  of  the 
supreme  conl  rol  of  law.  It  is,  indeed,  ♦  he  final  case  againsl 
James1  theory  that  bis  opponents,  whether  lawyers  like 
Coke  and  Selden,  or  parliamentarians  like  those  who  dn  w 
up  the  protest  of  1621,  should  have  used  no  argument 
not  to  be  found  in  the  precedents.  Novelty  begins  only 
with  the  Long  Parliament,  and  it  is  the  natural  offspring 
of  royal,  hut  impossible,  demands.  .lames  thought  of 
prerogative  as  identical  with  sovereignty  and  took  it  unto 

himself.  But  the  fundamental  idea  that  the  sovereign 
power  was  the  fusion  of  nohle  and   popular  wills  with   the 

kin^'.s  determination  had  already  been  sanctioned  by  the 
practice  of   Elizabeth  herself;  and  when  James  argued 
against  that  view,  he  was  already  too  late.     The  limit 
tion  he  admitted  —  the  duty  incumbent  upon  a  king  to 
care  for  the  welfare  of  his  subjects  —  was  meaningless 

in  the  Ugh1   of  his  own  reign  and  that   of  his  jon.       I'arlia- 

i 1 1* nt   >aw  that  a  will  limited  only  by  its  own  sense  of 

right    is    in    fact    not    limited    at    all,   and    it    responded    in 

the  natural  fashion  of  men  who  had  ancient   and  v.  n.  rat.  d 

documents  capable  of  being  interpreted  in  their  Bupport. 
The  struggle  which  ensued  uas.  as  Professor  EnTcIlwain 

remarks,    "in    all    its    stages    a    contest     between    law     and 

absolute   power,*'     What    the  issue  might    hav<    been  if 


304        POLITICAL    IDEAS    OF    JAMES    I 

James    had    l»<  en   a   gn  it     >tntc.M!ian,    willing    to    UM    men 

lik<  Bacon  to  translate  the  doctrinei  of  Dr.  CoweU  into 
\\\i    Rjifintiniffm  <»f  fad   they  demanded,  w<   cannot  tell. 

It    i>    at    least    (tit. tin    that    hi>    ineapacit  v    laid    tin     secure 

fouodationj  <»t  constitutional  government. 

IV 

The  constitutional  struggle  of  James1  reign  i>  the 
most  important  consequence  of  his  ideas;  \<t,  so  far  as 
the  theory  of  | > « > I i t i < •  —  is  concerned]  it  i^  secondary  in  sig- 
nificance to  the  controversy  which  arose  out  of  his  at- 
tempt   to  enforce  an  oath  of  allegiance  upon  his  Catholic 

subjects.     This  effort  is,  in  reality,  the  positive  side  of 

Elisabeth's    negative'    policy.      She    did    not    attempt     the 

definition  of  disloyalty;  it  iras  only  when  hook  or  act 
revealed  it  that  suppression  followed.  James  went  a 
step  beyond.     The  oath  of  allegiance  iras   intended   to 

divide  Catholics  into  those  who  could  he  trusted  and 
tho>e  who  would  refu.se  to  admit  the  fullness  <>f  his  power. 

Professor   McHwain's  discussion  of  this  controversy   is 

by  far  the  ablest,  as  it  is  the  most  original  part  of  his 

book.      It   is  difficult,  indeed,  to  admit   bis   new   thai    the 

oath  is  a  step  toward  the  acceptance  of  the  two  powers 
and  thus  a  stage  in  the  history  of  toleration,  for  James1 
attitude    toward    the    Puritans    and    the    zeal    with    which 

he  embraced  the  Anglo-Catholic  cause  show  that  be  was 

still    an   eager   adherent  of  the  ideal   of   uniformity.      As 

Professor  McHwain  himself  says,  James9  "views  of  the 

danger  of  hersey  are  in  no  respect  different  from  those 
of  the  Holy  Office";  and  in  the  general  background  of  lus 
ideas,  that  implies  the  principles  of  territoriality  in  re- 
ligion,   which    is    at    bottom    logically    fatal    to   dissent    of 

any  kind.     The  oath  confirmed  the  Church  of  England 


POLITICAL    QJEAS    or    .lA.Mi.s    I        306 

as  tin-  national  church,  and  its  implications  are  respon- 
sible for  thai  frenzied  ilt  upon  nonoonformitj  irhicfa 
reached  its  administrative  scnith  in  the  Clarendon  Code, 

James,  in  fad,  taught  the  Anglican  Church  the  ralue 
of  political  doctrine  as  a   means   to   political   victory; 
and  he  thereby  lanctioned  thai  policy  of  exclusion  irhich 
made  impossible  comprehension  <>n  the  one  tide  and  toler  i 
tion  on  the  other.     A  good  Catholic  maj  m  II  have  d-  oied, 
vViddrington  and  Barclay  denied,  the  temporal  power 
of  Rome;  l>ut  it  is  difficult  in  the  extreme  to  we  hon   he 
could  in  good  faith  have  promised,  as  the  fourteenth  n 
tion  of  the  enacting  Btatute  demands,  not  to  bring  con 
verts  to  the  church  he  believed  to  be  the  only  church  ol 
Christ.     Unquestionably,  as  Professor  McHwain  argues, 
the  object  of  the  oath  was  to  widen  the  gap  between 
the  Jesuits  and  their  rivals,  and  to  a  large  extent  it  suc- 

eded  in  its  aim.  But  the  mere  abstention  of  James 
from  claiming  religious  supremacy  in  the  oath,  at  a 
time  when  he  was  laboring  to  identify  the  pope  with  anti- 
christ, is  hardly  opening  the  path  to  more  tolerant  ways, 
The  act  may  not  touch  the  spiritual  supremacy  of  Rome; 

what    it    does    may    be,   as    Professor    Mcllw.iin    MVB,    "to 

deny  emphatically  that  the  Pope  can  ever  override  this 
division  [between  secular  and  religious  power]  by  exer- 
cising the  secular  power  of  deposition  under  pretext  of 
a  spiritual  eii(C,">  Hut  James  wis  himself  here  defining 
the  boundaries  of  the  spiritual  merely  to  suit  his  own 
convenience;  and,  as  Professor  Mcllwain  himself  admits. 

he  was   mulring  his  Catholie   subjects   accept    his   definition 

in  terms  so  offensive  as  necessarily  to  pain  any  Catholic 
with  a  regard  for  the  religious  position  of  Rome. 

This  attitude,  at  hast.  SCCms  to  he  continued  by  the 
debate  which   followed.      The   Catholic   party   was   divided 


806         POLITICAL    11)1. AS    OP    JAMES    I 

at    ODCe   into   tWO  great    classes;   and   later  discuuioil   li 

onlv     confirmed     the    <  I  i  \  i  ^  i(  >  n .      The     cont  niv»-r>v     i>,    at 
linttom,    the    HlOSi     fundamental    of    all    debater    until    our 

own  time  —  the  problem  of  the  temporal  power  of  Rome; 
for  it  ii  onlv  with  the  birth  of  scientific  theology  in  the 
nineteenth  century  that  we  have  tin*  final  argument  for 
the  supremacy  of  the  state.  Catholics  like  Bellarminei 
who  irerc  convinced  of  the  divine  character  of  the  Roman 
mission  and  the  nobility  of  any  effort  which  secured  its 
triumph,  could  be  answered  onlv  by  a  rigid  historical 
examination  of  the  Roman  claims.  Those  who,  like 
vViddrington,  denied  the  temporal  power  of  the  papacy 

and    thus    admitted    that     the    oath    was    justifiable,    WeTC 

in  fact  cutting  at  the  root  of  that  which  gave  Rome  her 
decisive  influence  in  the  affairs  of  men.     And,  for  the 

seventeenth  century,  the  oath  was  a  focal  point  in  tin- 
whole  theory  of  the  Counter-Reformation.  "England," 
as  Professor  Mcllwain  points  out,  "was  universally  recog- 
nized tin  n  as  the  one  corner  of  Christendom  in  which  there 

was  still   hope  of  checking  the  onward  moving  tide  of  the 

Catholic  reaction/'  This  it  is  which  explains  the  eager  and 

widespread  interest  which  statesmen  and  scholars  alike 
Could  take  in  the  dchate.  It  was  no  unimportant  task  to 
break  lance  with  a  king;  and  a  war  of  pamphlets  in  which 
dames  and  Hellarmine,  Casaubon  and  I)u  Perron,  Wid- 
drington  and  Parsons,  were  the  protagonists,  Could  hardly 
fail  of  illumination.  Nothing,  certainly,  in  this  epoch 
throws  so  vivid  a  light  upon  the  stakes  at  issue  in  the 
struggle  to  which   Luther  had  given  birth. 

Professor   Mcllwain  gives  us  a   careful   analysis  of  tin* 
historical    succession   of   the   pamphlets    which,   if   less    full 

than  the  admirable  account  of  Krebs,  is  amply  sufBcienl 
for  the  purpose.     The  argument  on  both  sides  i^  clear 


POLITICAL    IDEAS    OF    JAMES    I 

enough.      The     position     <>f     James     and     his     adherent 

irhether  in  England  or  in  Praaoe,  is  that  the  purpose  of 
tin  oath  ii  t In-  lecuring  of  civil  allegiano       En  the  oa 

of  men  like  Widdrington  then  is  no  desire  to  belittle  the 
spiritual  DOWCI  of  Home.  Rather  is  there,  not  seldom 
with  a  tone  reminiscent  Of"  \Y\<lil\  teaching,  an  urgent 
MBM  that  her  great  Dfifi  depends  upon  her  willingness   to 

free  herself  from  the  dangers  of  temporal  int.  rfereni 

Hut   suppose   hiT  insistent    in  claiming  the   right    of  such 

interference,  and  Widdrington  goes  on  to  deny  at  once 

its  historicity  and  its  value  in  the  modern  world.  It  is, 
in  fact,  the  parent  of  political  confusion  and,  almost  in 
the  language  of  the  Politiqucs  a  generation  be£oi 
Widdrington  insists  upon  the  self-sufficiency  of  the  civil 
power  and  the  dangerous  tumult  involved  in  the  new 
that  it  should,  if  need  be,  perish  for  religion's  sake. 
There  is  a  clear  notion  throughout  his  argument  that, 
after  all,  the  roots  of  obedience  are  in  the  individual 
mind,  that  unlimited  commands  on  one  side  or  the  other- 
are  bound  to  result  in  forcing  disaster.  The  readf  r  of 
it  can  hardly  fail  at  times  to  be  reminded  of  Newman's 
famous  Letter  to  the  Duke  of  Norfolk  and  again  of  that 
letter  from  Tyrrell  to  the   Father-General   of  the  Jesuits 

which  is,  perhaps,  the  ablest  analysis  of  the  psychological 

background  of  government  in  the  whole  range  of  English 
literature.  Widdrington  occupies  the  same  ground  rela- 
tive to  James  and  Rellarmine  as  Newman  to  Gladstone 
ami  Manning.  He  is  anxious  to  minimize  claims  on 
both  sides  that  moderation  may  result  in  an  equitable 
adjustment.  Professor  Mcllwain  does  him  no  more  than 
jastlCC  when  he  insists  upon  "the  remarkable  keenness  of 

his  criticism  and  the  force  of  hii  language."  \«>t  even  H<  11 
armine  himself  was  capable  of  more  effective  utteran 


808        POLITICAL    IDEAS    OF   JAMES    I 

It  is  difficult  not  to  believe  thai  the  real  strength  of 

James'    position,    his    poeiCHJOII    of    force    apart,    lay    in 

the  support  afforded  to  him  by  the  moderate  Catholic*, 

Yet  then-  whs  able  argument  from  bis  Protest  ant  ad- 
herents*    His  own  efforts,  §j  Professor  HcHwain  iaji, 

would  hardly  have  been  noticed  bad  bis  position  been  leal 
dignified;  but  the  writings  of  Casaubon  and  Andrews  and 
Donne  were  not  unworthy  of  their  opponents.  Mainly, 
their  effort   is  to  show  the  unreality  of  a  claim  to  loyal 

allegiance  which  still  admits  the  pretence  of  a  power  out- 
side; and  they  argue,  with  no  Little  show  of  historic 
justice  behind  them,  the  incompatibility  of  royal  govern- 
ment with  the  pretensions  of  Rome.  Nor  does  their  effort 
end  with  the  contemporary  character  of  the  debate.  The 
immense  volumes  of  Baronius  were  intended  as  nothing 
so  much  as  an  answer  to  the  Protestant  interpretation  of 
early  Christian  history;  wherefore  Isaac  Casaubon  must 
be  set  to  analyze  it,  page  by  page  and  fact  by  fact,  that 
the  learned  may  see  in  what  unscholarly  fashion  the 
claims  of  Rome  are  vindicated.  The  Convocation  Book 
of  Bishop  Overall  was  obviously  drawn  up  in  the  heat 
of  this  contest.  It  not  only,  as  Professor  Mcllwain 
says,  "made  an  explicit  denial  of  all  the  grounds  on 
which  those  claims  were  based,  and  of  all  the  theories  to 
which  they  gave  rise,"  but  it  proved  to  Archbishop  Laud 
"the  supremacy  of  Kings  and  chief  civil  magistrates  above 
the  High  Priest  from  the  creation  to  the  end  of  the 
Jewish  estate,"  and  Overall  does  not  conceal  that  it  is 
the  identification  of  Rome  with  anti-Christ  that  is  his 
main  concern.  Kven  when,  in  1622,  James  set  Laud  to 
answer  the  sophistries  of  Father  Fisher  it  was  to  these 
arguments  that  the  prelate  went  for  his  main  support. 
The  most  brilliant  of  James'  adversaries  lay,  however, 


POLITICAL    IDEAS    OP    JAMES    I         809 

not  in  Rome  hot  Pari-.     Four  yean  after  the  dagger  of 

Kavaillac  liad  ended   the  great    dreams  01   Ibury    I\'   the 

Btatct  General  nut  for  the  last  time  before  tin-  Revolu- 
tion. Paris,  M  nl\vav>,  frai  01-disposed  '<>  I  It  ramont  an« 
theorj;  and  its  caliicr  had  suggested  the  need  of  an  oath 

whereby  the  "impious  and  detestable91  doctrine  of  the 
righl  of  deposition  might  be  condemned  by  officials  and 

ecclesiastical      Clearly    enough,    its    adoption    would    ha\< 
raised  in  France  a  warfare  of  pamphlets   not    lest   acute 
than  that  already  raging;  and  the  underlying  (ialliean- 

isin  of  the  French  Church  might  well  have  rendered  the 
debate  both  dangerous  and  bitter.  Cardinal  du  Perron 
was,  therefore,  delegated  to  soothe  the  anger  of  the 
Third  Estate.     The  man  who  had  already  disquieted  the 

profound  Protestantism  of  Casaubon  was  well  fitted  for 
the  task.  A  convert  to  Rome,  his  memory  was  unfathom- 
able, his  dialectical  power  unsurpasx  d,  and  if  his  learn- 
ing, as  Andrews  was  later  to  show,  left  not  a  few  loop- 
holes for  antagonists,  it  was  yet  profound  enough  to 
raise  no  question  of  his  fitness  for  the  office.  It  was  with 
one  eye  upon  James  and  England  that  he  wrote.  Vir- 
tually the  oath  condemns  the  church  and  must  thus  prove 
the  parent  of  schism.  It  would  create  great  conflict 
between  the  demands  of  the  state  and  the  claims  of  con- 
science. It  is  thus  a  seed  which  when  sown  is  like  to 
destroy  that  union  of  church  and  throne  in  France  upon 
which  the  unity  of  the  kingdom  depend-:  and  Perron 
•  mm  argued  that  this  was  not  the  least  motive  by  which 
.Tames  himself  was  moved.  It  was  useless  for  Miron  to 
answer   that    the   oath   was   a   civil    safeguard   against    the 

religious  cloak  under  which  assassination  was  fostered 

The  Third  Estate  might  grumble,  but  the  Council  for- 
bade   discussion    of    the    oath;    and    Perron's    argument 


810        POLITICAL    CDEA8    OF    JAMES    I 

alone  survived  to  demand  response  from  James  and  \u> 

Adherents.  The  rrsull  was  .lam< V  lumon.st raui'V  for  the 
Right  of  Kintjs,  perhaps  the  ablest  of  his  works  and  a 
clear  defence  of  his  original  position  thai  the  indited 
power  of  Rome  in  Logic  spelli  royal  dependence  m  the 
papacy. 

It  remained  for  a  lawyer  who  stood  between  tin-  claims 
of  Rome  and  England  to  sum  up  the  debate  in  a  fashion 
of  which  the  spirit  stands  nearest  to  our  own  day.  Bar- 
clay's De  Potentate  Iln fun-  not  merely  influenced  the 
I  itholics  whom  the  debate  till  1609  had  lefl  in  besit 
tion,  hut.  as  Professor  IfcHwain  remarks,  is  "one  of  the 
mosi  effective  presentations  against  the  temporal  claims 
of  the  Pope."  The  hook,  indeed,  did  for  the  seventeenth 
ntury  something  of  the  work  accomplished  by  Dol- 
Linger'fl  The  Pope  <nt<!  the  Council  in  the  great  infallibilist 
controversy.     It  caused  many,  said  the  Archpriest  Birk- 

ln  ad,   "to    staler   about    the   oath."      The   discussion    11 

valuable  not  so  much  for  any  novel  elements  that  it  con- 
tributes, as   for  its   clear  perception,  and    that    from   the 

standpoint  of  a  convinced  Catholic,  of  the  evils  of  the 
temporal  power.  Barclay  saw  without  difficulty  that  if 
the  Roman  cause  were  upheld,  the  result  would  practically 
make  the  ecclesiastical  world  an  impermm  in  imperio. 
The  supposed  papal  control  over  kin^s,  in  any  save  the 
spiritual  sense  <>f  prayer  for  the  sinner,  he  Btoutly  denies 

from  lack  of  scriptural  authority.  That,  of  course,  upon 
which  Barclay  pinned  his  faith  was  the  complete  division 
of  secular  and    religious   worlds  —  a   point    of  View   which, 

logically  worked  out,  would  have  cut  at  the  root  of  James 

own   position.      Bella rm in e's  answer  to   Barclay  reasserts 

the  logical  necessity  of  unity  and  s()  discovers  the  apes 

of   world-power    in    Rome.      Hut    restatement    is    not    re- 


POLITICAL    IDKAS    OF    JAMKS    I  Ml 

■pom  |  And  though  Bellarmine  may  have  satisfied  his  own 
intelligence,  In-  did  not  quid  the  fears  of  th<  Catholic 
conscience  in  England*  For,  after  all,  not  only  had  tl 
an  imperative  desire  for  \>  .  not  only  irere  they,  as 
L588  had  shown,  mosl  fiercely  conscious  of  their  national 
itv,  hut  the  picture  of  a  church,  ai  Barclay  drew  it, 
deriving  its  strength  from  the  unearthly  splendor  of  the 

spirit,  could   not    hut    make  an   eager   appeal    where   polit 

IcaJ  necessity  added  thereto  an  attractiveness  which  spelt 

domes! ic  comfort. 

With     the    Opening    of    the    Thirty     Years'    War.    the 

struggle  was  transferred  from  the  anna  of  the  mind; 
and  material  and  economic  exhaustion  drove  both  parties 
to  a  compromise  which  if  is  doubtful  if  thej  would  oth< 
wise  have  made.  The  inevitable  result  was  the  slow  de- 
velopment of  the  secular  state.  Uniformity  proved  to 
be  too  costly  an  ideal,  and  doctrines  of  right  ^-^^  place 
to  doctrines  of  expediency.  It  is  not  at  all  clear,  as 
Dr.  Figgis  has  insisted,  that  the  result  is  unallowed  gain, 
yet  the  vindication  of  the  right  to  be  wrong  which  ii 
implied   in   this  evolution   is   perhaps   not    h  s>   valuable 

than  what  has  been  lost.  What  was  involved  was,  of 
course,    the    necessity    of    toleration.      Men    do    not     ur. 

■ 

either  that  TransubstantiatioD  or  the  Thirty-Nine  Ar- 
ticles are  not  doctrines  for  which  it  would  be  worth  while 
to  die;  hut  they  are  driven  by  experience  to  the  admission 
that  this  U  a  question  upon  which  difference  of  opinion 
i-  not  merely  possible  but  also  possible  without  penalty. 
Sooner  or  later,  that  toleration  makes  the  state  neutral 

and  thence  pastes  logically  into  indifVerem  The  paSSMNI 

for  uniformity  breeds  persecution;  persecution,  ^«>  fni 
from  destroying,  seems  almost  to  provoke  diversity  of 
outlook;  diversity  of  outlook  is  in  torn  the  parent  of 


:i\2         POLITICAL    IDEAS    OF    JAMES    I 

know  ltd.  The    controversy    winch    the    acts   and    writ- 

ings  of  .Janus    produced   it,   in    fact,   tin-   accciltrV    j)i 

hide  to  !ii«)(l»  in   freedom. 

V 

It    is   also   more.       It    was    fought    upon   an    ISSOC   that    is 

far  from  dead.  The  experience  it  engendered  forced 
nun  to  admit  that  it  is  a  mistake  to  propagate  religion! 
•  it  ids    by    force.      Westphalia    meant    that    the    Roman 

Church  would  never  again  exert  decisive  political  influ- 
»  nee.      Hut   the  passion  for  unity  did  not  die;  rather  irai 

it  transferred  to  the  inhere  of  the  secular  state.     The 

churches  have  had  to  struggle  against  the  control  of  the 
state  in  a  fashion  hardly  different  from  that  in  which  the 
itates  of  the  Middle  Ages  fought  against  the  dominion 
of  Rome;  nor  can  they  as  yet  be  laid  to  have  succt  t  d,d. 
The  Oxford  Movement,  the  rise  of  the  Free  Church  in 
Scotland,  the  Vatican  controversy  of  1874,  the  Kultur- 
kumpf,  are  all  of  them  protests  of  a  church  which  refuses, 
like  the  Reformation  Church,  to  regard  itself  as  the 
creature  of  an  alien  body.  \or  has  the  state  hesitated 
to  use  in  its  turn  the  doctrine  of  the  indirect  power. 
The  famous  Free  Church  of  Scotland  case  is  nothing  so 
much  as  the  assertion  bj  the  state  that  where  property 
is  dependent  upon  dogma,  the  secular  courts  will  consti- 
tute themselves  the  judges  of  its  disposition  and  that 
without  regard  to  the  basic  tenets  of  the  association  in- 
\<>l\ed.  The  state,  in  fact,  constitutes  itself  the  ultimate 
reserve  power  in  a  manner  at  no  point  dissimilar  from 
that  of  Koine  three  centuries  ago;  and  it  may  yet  again 
become   true,  as   it    was    true   in   the   seventeenth   century, 

that   the  protest!  of  organised  religion  will  break  down 

the  fabric  of  the  sovereign  state.      Certainly  the  problem 


POLITICAL    [DBAS    OF   JAMKS    I        818 

of   voluntary    associations    in    their   connection    with    the 

political  organ  ii  the  most  urgent  that  confronts  na. 

Nor   ia   this   all.      Such   external    relationships    present 

a  problem  about  which,  in  the  perspective  of  recent  polit- 
ical theory,  there  i>  do  ipecial  reaaoo  to  despair*  Hut 
the  interna]  relations  of  the  itate  present  questions  for 
inquiry  that  suggest  a  singular  resemblance  to  those  of 
the  Stuart  tiin< .  We  are  no  longer,  at  least  in  theory, 
dependent  for  our  political  decisions  upon  the  will  of 
a  single  man,  even  though  the  Dumber  upon  whom  re 
lution  seems  to  rest  is,  in  an  ultimate  analysis,  curiously 

■mall.  But  while  it  has  proved  reasonably  easy,  at  least 
nnce  1829,  to  maintain  religious  toleration,  political 
toleration   we  have  not   yet   secured.      "There   are   in   our 

day,*1  wrote  Lord  Acton  in  1877,  "many  educated  men 

who  think  it  right  to  persecute.91  The  national  state, 
at  least,  has  thought  itself  emancipated  from  the  need 
to  tolerate  dissent;  and  we  penalise  beterodoi  opinion  in 
politics  hardly  less  cheerfully  than  heresy  was  penalised 
in  the  Middle  Ages.  In  affairs  of  state,  in  fact,  we  do 
not  as  yet  admit  that  the  duty  of  the  individual  is  to 
contribute  his  best  personality  to  the  common  good. 
Rather  do  we  insist  by  government  enactment  that  per- 
sonality shall  flow  along  certain  preconceived  channels* 
Vet   that   is  in  truth  to  destroy  the  uniqueness  in  which 

th»-  essence  of  personality  consists.  It  is  to  pursue  ex- 
actly that  image  of  uniformity  against   which   the  liberal 

thinkers   of  the  Counter-Reformation   were  struggling. 

No  state  can  be  free,  which  penalizes  thought.  To  make 
political  authority  conmn  riMirate  with  the  bounds  of 
mind,  is  to  misread  the  history  of  a  thousand  wars.      For 

if  liberty  i>  not  the  protection  of  an  initiative  which,  :i- 

Mr.  Graham  Wallas  has  pointed  out,  must  be  continuous 


;;u        POLITICAL    II)K\s    OF    JAMES    I 

if  it  i>  to  In  vital,  it  i>  not  worth  tin-  cost  of  at  t  :i  iimit  nt . 
Yit    thifl   II  an   historical   truth   \\e  have  still   to  ham. 

It  II  herein  that  work  Mich  as  that  of  ProfeSSOf  Mc- 
Ilwain  possesses  its  especial  import.  No  man  can  realize 
the  bearing  <>f  what  Bcllarminc  and  Widdrington,  An- 
ilnwis   and    l)u    IN  iron   WtTt   trying   to    teach,   without    a 

move  exact  understanding  of  tin-  problemi  of  our  time 
Politics  are  not  merely  vuljg&r.  in  Seeley'a  admirable 
phrase,  unless  thev  are  liberalised  by  history;  they  are, 

in   fart,  in  large  part   unintelligible.      Por  there  is  a  real 

sense  in  irhich   the  problems  of  polities  are  perennial, 

and  if  the  answer  of  each  generation  is  different,  it  vet 
deposits  a  tradition  which  determines  the  environment 
of  our  in  \t  response!  Nothing  is  today  more  greatly 
Deeded   than   clarify   upon   ancient    notion^.      Sovereignty, 

liberty,  authority,  personality  —  these  are  the  words  of 

which  we  want  alike  the  history  and  the  definition;  or 
rather,  w<'  want  the  history  because  its  substance  is  in 
fact  the  definition.  No  period  has  so  illuminated  these 
questions  as  the  Counter-Reformation.  It  is  in  some 
sort  the  birthplace  of  the  modern  state.  The  history  of 
its  ideM  i^  in  a  special  way  the  history  of  our  social 
origins;  and  we  bear  upon  the  external  aspect  of  our 
political  life  the  scars  of  the  special  experience  encoun- 
ter, d  in  that  epoch.  That  is  why  an  analysis  of  its 
fundamental   ideas  is  little  less  than  a   public  service. 

THE    END 


INDEX 


Ablnger    (Lord),   281. 
tctou   (Lord),  228;  8ia 
Alderson   (  Boron ),  868, 
Altliusius,    20f,    MO. 
aim  r  itonc  (  Lord),  186,  988. 

Andrea-   (Johannes),  192. 
A(|iiinas     (Thomas),    11,    211. 
Aristotle,   916*   841, 
Arnold  (of  Brescia),  7. 
Austin  (John),  17,  IV-',  908,  28a 
\ .  i  bnrj    ( I  .ord ),  :5.{. 

Bacon  (Francis),  908;  884. 
Bacon    (Nicholas),   257. 
Bagehol  (Waller),  §7,  88,  ill. 
Bagshaw  (Chrlstopaer),  998. 
Balfonr  (A.  J.),  82. 
BsH   (John),  8. 
Balsac  (H.),  9a 
Barclay  (William),  310. 

irthou    (L.),   220. 
Bartons,   189, 

•v    (T.)i  97%  278,  288. 
Bellonnlne  (Cardinal),  988;  -'HO. 
Benthnm   (Jeremj  ),  28,  86,  228, 
Beat    (Mr.  Justfee),   it.'.  981 
Blrreli   (Augustine),  -'7i 
Blackburn  (Lord),  114,  ->5i. 
Blackstonc  (W.),  108,  17U. 
Bodln  (J. •an),  i7t,  21,  198. 
Boniface  VIII,  %  188. 
Borgia   (Caesar),   I  v. 
lTnsnsjnr1  (H),  817f,  -'29. 
Boncber,  98) 

Bracton*   18 1  t,   194)  961. 
Bramwdl  (Lord),  ltd,  153,  258, 

978 
Brland  (  \  >.  99a 


Brougham   ( Lord),  290; 

Brown  (  R.), 

i    jrce  (  Viscount ),  57. 

Bachan  in   (G  >,  ~ 

Burke  (  l    ;.  ix,  88,  lOlf,  j I j,  99L 

Burrough  (  Mr.  Ju  tice , 

( alms  ( I'.irl ),  151. 
Calhoun   (J.  C), 

Cecil    (Lord    II.).    _'_'!. 

Chadwldi   |  E.),  I 
Chamberlain  (J).  18,  1 17. 
Cicero,  8. 
demenceau   (G.),  181,  221. 

(  OCkburn     (Chief    Justice),     1 15, 

H7. 
Coke  (Sir  !•:.),  104,  90B  7.  96L 
Cole  (G.  l).  II.).  v 
Coleridge    (Lord),   18a 
Collins   (Lord),  271. 
Constoul    (Benjamin),  222, 
Cottenhssn  (Lord),  115. 
Cow, li  (j.),  804, 
Cranworth  (Lord),  j 

Cr-.ly     (H.)i    J,    B 

Cunningham   (W.),  188 

Dnnby  (Leeds,  Dnkc  of),  108. 
Dante,  2,  188, 

Dicey  (A.  V,)i  Bo\  1 17,  194,  131, 
188,  - 

Disraeli    (H.),  31,  88,    UK). 

DoQlnger  (I.),  87,  BIO 
Dominic  (Saint),  i 

Doyle  (J.  A.),  s, 
Dubois   ( Pierre),  !■ 

I  NlguH    (  Leon),  x. 


:no 


INDIA 


Bldon  <  lord),  145.  lil 
i  ii      Sir  ¥     ,14 

I     her    (Lord  i,  281. 

i  ,ru,n  (Lord  Jnetfei  )  an, 

'      N    I,   .x,   -"<-\  311. 

PUmer  (R.)i  88 

i  .  h.  rill     \     L .),  BS,  80,  66, 
100. 

i      .nkfurter    (  Felix),    262. 
in. in    (  I..   A.),  5d. 


IniHK'rnl    III,  2, 
Inn.ntnt    IV,   190. 

James   I,  .3O0f. 

James    (  William),    169. 

i  .>   (John),  12 

Jeaeel   (Sir  (;.),  255. 

J<»hn   of    I  IS 

John   "i    S.lishury,    1H9. 
Johnson   (Samuel ),  28. 

Jonas  of  ( )rl«  an  .  ft 


(  ,  nnhetta,    39 
his   I,  2. 
I    orge  (I).  Lloyd),  88,  828. 

(ierurd    (of   York).    I 
son     (Jean),     12. 

Gierke  (0.)i  i  ML 

idetone  (W.  I •:.).  Bl  -',  34,  4<), 
■.   Iff. 
Godwin    (William),  9*-* 

Gooes   (O.   P.),  989 

Green  (T.  rL),  1 7,  86,  228,  282. 

Gregory  vi  I,  3. 

I  laldane    (  Viscount),  X,   181. 

Hamilton  (Alexander),  x,  212. 

21* 
Hammond  (J.  L.  &  B.),  x,  238. 

Harlan    (Mr.   Justice),   127. 

Harrington  (J.),  81, 

II  .uriou  (M.),  |82. 

Hegd  (G.  W.  P.),  12,  232. 

I  liggini    (  Mr.  Justice),  31. 

I  Ilncmar,  8. 

Hobbea     (Thomas),    17,    22,    97, 
l.N,   |«8,    171,  J33. 

HodgUn    (T.)i  BBt 

Hodgskin    (Thomas),  95. 

Holland   (T.   B.),   M 

Hohiu-s   (Mr.  Justice),  ix,  xi,  55, 

ii2,   126,  253.  267n,  281. 
Holt    (Lord),  26^  2.r>7.  • 

Hot,,,  in   |  Pranda),  20,  296. 
HoreU  (Mark),  x. 
Hume   (I).).  216. 


K\d    (Stuart),    U2,   208. 

f  ammnali   (P.),  ril,  87. 

I.uishury    ((I.),  50. 

Leo  III,"  I 

1. ill. una-    (John),  212. 
I.indl.y  (Lord),  141,  154. 
Lippmana  ( Walter),  xi. 

I.oeke    (J.),    23,   240. 

Lohne   (J.  de),  169. 

Lopea    (Sir   M.),  61. 

Low    (Sir  S.),  37,  221,  223. 

Lowell    (A.   L.),    120. 

Luther   (Martin),  15,  295,  300. 

Machiavelli,    14. 

Me  II  wain    (C.    II.),   292f. 

afacnaghten  (Lord),  160. 

Madox  (Thomas),  204. 

Maine   (Sir   II.),  300. 

Maistre   (J.  de),  248. 

Maitland    (F.    W.),   ix,    104,    135, 

114,  161,  159,  172,  176,  184,  190, 

194,  208,  257,  297. 
Marshall   (John),  18,  142. 

afaralgUo,  4,  9,  12,  211. 

Marx    (Karl),   16. 

Mill    (James),    137,   221. 

Mill  (J.  S),  12,  16,  221,  224,  244. 

Ifonteaqnlem,  212,  225. 
Morley   (Viscount),  31,  85. 

Newman     (Cardinal),    307. 
Nicholas  (of  COM),  6,  9,  189,  240. 


INDEX 


817 


I       .ham    (William  of),    11'.. 

<  tdlllon  Barrot,  M 
kJ  (M.)i 

Parke  ( Baron),  - 
r  irneU   (Charles),  Bl 
P  neons  (Robert  I,  9 16 
Paul  Bancour   (J.),  75. 

P  i\  Mi-    |  I       .1),   X. 

Po  I    (Sir   R  |,  60. 
Perron     I   irdin  .1).  9 
Plato,  26,  227. 
Polloi  i.  (  Baron),  i 
Pollock   (Sir  I-.).  267. 
Pothfc  r,  2 
Pound  i  Eloscoi  ),  \.  BL 

R  illl.r,    2 

Redlich  (J.)i  60. 

Ritchie    (Lord),   IT. 

Roffredus,  192 

Route   (Baron),  146, 

Roatai  as,  20,  296. 

Ron  »  «u,  vi,  9,  28f,  76,  212f. 

Royer-Collard,  216,  222,  240. 

-  Jmond  (J.  W.),  142 

Sankey    (Sir  J.),  vii. 
ley  (Sir  J.),  814, 
Shaw"   (Lord),   27L 
Sidgwkk   (Henry),  216. 
Sidney  ( Algernon),  28, 
Smith'  (  tdam),  284, 
Smith  (Sir  T.),  104-6,  201,  B0& 


tunton,  808. 
Strafford  |  Bar]  of)i  n*. 
Stubbt  ( W.),  198. 
it  neai  |, 

l  M->     (R     II.),    V 

i  irlof  (Sir   11  .   122 

I    j  lor  (John  },  i 

l.  nterden    |  Lord  I,  H 

i    cqu«  i  Die    (  \i.  m   ),    I0fa    . 

8,  281 
Trinmphti     (An  jus!  Inui  | .   i 
Turner  (  P.  J.),  d. 
Tynd  ile  <  William),  294 
I  \  rr.  11   (George),  91,  997. 

Voltaire,  212. 

\\ 'alias   (Graham),  \i.  viii,  x,  82, 

87,  11,  18,  B6,  269,  8ia 
Webb  (Sidnej  ),  x,  B8,  46,  19,  -  . 

B4,  96. 
Weill  (  H.  G.),  iv 
Westbury    (Lord),  9 
Widdrington   (Roger),  296,  807. 
Wlgmore  (.1.  H.),  962. 
Wilh-s    (Mr.   Justice),  264,   266, 

26a 

Wilmot    (Chief  Justice),  UR 

Wilson  (Mr.  Justice),  127. 
Wright  (R.  S),  j  - 

Zimmern  (A.  E.),  286;  289. 


•indJtiOAt  of 


nun  mum 

1  1711  0025M  ?TM3 


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oth*